you may proceed thank you your honor is what played out in the u s district court in nashville on february twenty third two thousand and twelve which was the second day of jury deliberations after a trip to week trial was not the old henry fonda movie twelve angry men it was in fact too angry women and one ambiguous man with an agenda who succeeded in ousting a deliberating juror a female african american named  from the panel who was an obvious holdout and was the lone holdout for acquittal for no end in the record well it's it's not experience say that but i mean aren't you limited to the record when you appeal before us i mean should you be saying things that well i think you're actually on the record i think when you read these cases your honor cases like brown argue about what's in the record you say she was an obvious holdout is there anything in the record says well there's nothing in the record that says that but i think all of the limiting your presentation to what's in the record is but but my point is that when you read the cases like brown and the other ones i think those panels have said that you really have to infer what's going on  because you don't have any explicit statements from the jurors and that and that was the point that i was made if you have a chance to take a look at the deliberation timeline that occurred in this case i believe it compels the conclusion that miss le claire was the lone holdout in the face of a hostile pro conviction majority the deliberation time on february twenty second two thousand and twelve which was the first afternoon to deliberations after deliberating three hours a message was sent to senior judge nixon there read judge nixon we cannot reach a unanimous decision on either defendant judge nixon gave them sort of an extemporaneous modified allen charge and released them for the day on the next morning february twenty third two thousand and twelve the jurors begin deliberations at nine am within the within an hour of their deliberations they had to know they had another message and i know the chords from earlier with him if i can just paraphrase it the note said one of the jurors in this was written by the four person of the jury one of the jurors overheard a fellow juror that we later learned was idyllic claire commenting on having prior information about drug dealing that she did not reveal during jury selection i feel so the four person saying i feel that this prior information could perhaps be influencing her ability to reach a fair decision which i think based on all the facts and circumstances in my mind compel the conclusion that the fair decision would have been to convict and should have been made known during the selection process thus can we consider removing this juror and using her the alternates but what is your view of the standard that is before this court in terms of the removal of clay or is it whether just nixon abused his discretion in removing or i think the standard is a juror should not be excused if there is any reasonable possibility consistent with the brown decision i know the sixth circuit has not directly decided this but consistent with the brown sedition and i think the simpson case about aside in my papers sort of adopted that brown standard of any reasonable possibility that a jerk is being excused because they may hold beliefs stemming from a decision that they may want to acquit in the case so i think that would be the proper standard the best standard that's been articulate other courts but not by the six or not by the sixth circuit but if you take a look at the simpson case the trial judge in that case was very careful to say that was an odd case he had two jurors that were dismissed in that case you had a man by the name of bacon who failed to disclose journey jury selection that he had two prior mr meter convictions he was excused before the deliberations then there was another another there was a female juror that had some problems on the panel but she was ultimately dismissed because she had ill health and the trial judge was very careful to point out that she was not being dismissed for any or the reason other than her her poor health when that note came out on the morning of february twenty third i immediately objected and cited cases to judge nixon what followed was a a regular style hearing that we had in open court and i think if you have a chance to take a look at the transcript and what transpired during the rammer hearing you'll see that it was really not as advertised in the note that the four person had sent to the judge these comments whether they are kurdish not missile clear was emphatic that she never said any of these things  what happened here but but assuming the good faith and the logical aqim and of the street court it's the district court is seeing these witnesses one of them says she said that the other says she didn't say that should we second guess that by reading the transcript or should we defer to the to the finding of the judge who heard that testimony with all due respect each other's necks and i don't think there were really any probing or reaching findings that were made if you take a look at  in but there's but that doesn't really answer my question well i don't know why why wouldn't we if we're not sure which of two jurors slash witnesses i guess i think that is telling the truth  you're trying to do justice here the district judge you're going to find one of them more believable than the other and rule in that fashion but put it in shoe if you take an objective look at the transcript there's just not enough there to make that kind of it's like a clearly erroneous determination of the district i think what happened and i'm not being critical of judge next and o'mara mascon for the standard here i think it was clearly erroneous you have to got to the standard is whether it was clearly erroneous as factual determination i think it is i mean you had judge nixon who accepted the invitation of the government to turn it into a credibility determination and when you take a look at the transcript you have the first person he's brought out is the four person and she's merely the recorder she knows nothing about what happened  the next person who was supposedly the person that overheard this woman by the name of suzanne moore who got this whole ball rolling had a very tepid statement during the rumor hearing and i quote miss malone says i don't want to misstate anything because i may be completely wrong it just seemed she referred to miss le claire mentions she knew some people like that that's all she said the only sure thing as he was them if if the sinclair failed to comply with the questions there was insufficient evidence of that then this would be a wrong decision that the judge made but i want to ask the flipside if there was sufficient evidence for the judge to find that sinclair did not comply border questions would this have been an abuse of discretion to remover i think you could characterize it that way but if you take a look at the aha i'm asking about the content of the use of discretion standard under the law that's applied here if you assume for the moment and i recognize that you disagree with this but i'm asking some assume that the judge had sufficient evidence to believe that the juror had not complied with the board here in a in a relevant way in a material way with then it would be an abuse of discretion to remove that's contrary to your assumption but if you take that assumption then would it be an abuse of discretion to remove i think it would be to be still an abus discretion so really doesn't matter whether he believed it or not well the problem is there is no basis for him to have believed if and i was asking you to assume that there was a basis to assume that i'm sorry and you assume that for the moment i'll assume for the moment for the moment assume that it's clear as a factual matter contrary to this case that the juror did not comply with the border questions in a material way i mean it's not that she gave the wrong address but that she said something related to what somebody might take into account in doing their their objections then would it be an abuse of discretion to remove that sure i think it would be yes and that and i understood your argument to be it would be an abuse of discretion because the judge asked the extent to which her views influenced her deliberations third birthday king and the court did ask s to play or did she same thing about that and how that influenced her one way or the other talking about knowing people possibly use drugs and jury gates among other things i don't think she ever in the same conversation tied together a couple different things that that is how she was influence so as i understood the beginning of your argument it was this put potential or likely influence of her background observation of drugs or seeing drugs that is the the real problem here in terms of disposing or but significantly judge nixon never asked her did any of this influence your ability to deliberate in this case do you feel like you can return to the jury room and fairly deliberate and reach some consensus with your fellow jurors that was never done you had mr lucas case come out and tell judge nixon that he overheard these things and it was very ambiguous whether it was drug use or drudge drug trafficking but in response to judge nixon's question about well did it influence mr gates did it influence miss look layers ability to deliberate he said well she never said she was influence and i think there are other factors and then he was sort of cut off and never got to explain what those other factors were so i don't know how to judge nixon could have divined whether misled claire was credible or whether mr lucas with his ambiguous statement was credible you have you have a position  have would have been appropriate for her to have answered the various questions in war dear that i think the government argues that she should have answered in the affirmative but if you take a look at the pages that the government cited in what they think impacted this area during jury selection the pages indicate that the prosecutor was not mr leave the time asked the panel in some hypothetical have you ever been pulled over by a state trooper and then the other questions of the government says impacted were just very innocuous generic questions is there anything that we haven't asked you that we should have i asked you my questions about drugs to the rounds of the panel and war are were basically you know anybody that suffered from addiction has abused drugs so there was no question put to any member of the panel that would have elicited this kind of a response and then there's a real question i believe as to whether she ever said anything like question asked do you have any exposure with drug dealers with drug trafficking and the simple answer is that question was never asked you know mr straw mats or opponents counsel did at one point  ask i think something that's relevant is but is there something that strikes too close to home about drugs and that's something that would want to know about now certainly in the minds of at least three of these jurors who are back there deliberating there was an open door to answer this question about is there something about drugs or drug dealing that should have been answered and what here you know this is not me standing here on chair quarterbacking two years after the fact saying she should have raised her hand this what what question would have required her to answer if as she testified she knew people who used drugs but never saw them by drugs yes your honor and if that were if it were limited to that i think it's a different situation at the answer my question what if as she testified she knew people use drugs she may have seen them actually using drugs but she never saw drug deals she never saw drug sales which question should she have answered were were in that situation she wasn't required to answer any questions about border questions yes ron and i think if it were as an innocuous experience of you know at a concert and seeing someone do drugs which i suspect many people have and that is something approaching an everyday  not then necessarily answer the question i think would be fair to say that was an open door but if it's something so so judge in order for judge nixon not to have been abusing his discretion he must have come to the conclusion that she saw more than that in her background yes try i think that is fairly evidence from the record and then becomes a factual issue according to your view of the law becomes a factual issue whether the judge could without clear air come to the conclusion that she'd had seen in her experience more than just occasional use of drugs so that right i believe sir your honor he said factual i think in his discretion to make that determination but based on yes what evidence is there was there before judge nixon that she had that additional experience was just the the hearsay of the other with of the other juror yes honor and i think to get at what exactly you're basing your no clearer position on here i think the statements of jordan gates one time she did mention that she'd seen it being dealt in a number time another time she mentioned that she never actually saw people doing drugs and we should say according to you we should say that the district court didn't abuse its discretion because it should have believed the hearsay of this certainly corroborates although not as unequivocal as gates that the statements were made and then also i guess you we really wouldn't have to figure out the truth or non truth of whether she'd seen drug dealing going on or whatever there's something that strikes too close to home about drugs then that's something that we would want to know about and she says that question that should have elicited a response from miss le claire that she knew of some drug users and maybe even knew that people dealt drugs i don't mean to limit it to that one specific state but the reality is this was a drug case this is a drug distribution case the indictment was read before everyone but we have to look at the question presumably to remove look like i'm just trying to get a sense of these three or four questions that are there were asked of her which of them required her look layer to  judge roger said fess up as to what ever she knew about drug dealing or drug usage and i'm having a hard time finding any question that would require her to give such a response looking for your help well your honor in certainly i wish the record had that explicit question like does anyone have a close family member or friend who's you know a drug dealer who drug traffic server who deals with that in the record doesn't ha doubt isn't there and i don't mean to hold position that there is one specific question that she remained silent and she should have answered and i think it has to be viewed within the totality of the circumstances the fact that this was a drug trafficking case the fact  one point appellants counsel also asked we're just trying to determine does anyone have such a bias that they could not be fair or in portia when a case like this certainly i would think that exposure in dealing with i was a juror i would have answered that just because i've seen similar acts in fact i think most people would not answer that yes there are i think the difference is you know the comparison about seeing someone doing drugs on the street not know anything about versus being having a close enough react i'm asking about the questions i think it's judge cole's question as well which is what are the questions that should have a list that this and you identified one are there any others because asking whether you're biased i can't see why that would elicit at all just doesn't strike me that that would cause any juror who would be a bank robbery case and you say are you biased and i'd say well i saw a bank robbery two days ago but i'm not biased and not even raise your hand yes ron i do use analogies but not to  sidestep your question so i'm going to come back to an ask given answers you know i grew up on a farm and if we went into a case about cattle and somebody asked me a cattle small farm or big corporation and if somebody asked well do you have any biases that mine might weigh in this in this trial so you know what i would think that i would have a plaster on you might think you have a bias but you might think i know all about cows but i'm not biased i think that's what most people would think unless you said do you know a lot about cows or do you have opinions about cows then i might say well i better raise my hand because i know a lot about co if i'm thinking that way does that mean you lose your case or is there something in there that are there questions in there that relate to do you know about drugs as opposed to are you biased there are no i don't believe that the record reflects any questions about you know specifically about drugs about drug trafficking about this is how it works these are kilos these are i don't believe the rest of the posts you get to that just not in there i think the close as you get is the general discussion and as i mentioned the totality about it being a drug case of the other jurors sure thought that they were required to talk about any knowledge they had about drugs they just remembered it wrong or is there anything there which suggests that they should have talked about drugs as a potential juror i think the circumstances reflect that they felt compelled that it was an appropriate subject matter to discuss if it was a political delta talladega circumstances suggest that the jurors at least two or three of these jurors be the holdout when you look at the timeline here there were these two or three hours of deliberation and he couldn't reach a verdict they come back and as i recall just next thing is a modified allen charge they they go back out and then it's it's after that when these jurors the four person contacts judge nixon says there is this this problem and it that as you read the responses from malone and gates part of the problem they have is the way in which she's deliberating how she's influenced by whatever it is they perceive her to be influenced by and so that maybe that just crosses that line where there are more bothered by how she's deliberating and beate that would be an impermissible  certainly i think the record reflects certainly by gates statement as corroborated to some extent by the poor person one that the exchange knowledge she was bringing was something a little more than that and what i don't want to do is sit and conjecture and speculate about what was discussed outside of the record because frankly nobody knows what miss le claire was thinking what she said doesn't that mr strauss talked about these other circuits and the standard which is is there any possibility from the record that the removal stem from the jurors view of the case or any reasonable possibility or a very substantial possibility does seem that there is maybe any of the circuit where the joe ultimately they discussed the brown in the symington case there they found that the juror the deliberate process was not implicated because the trial court dismissed the juror for case and we have fur maybe we can't but that she was the holdout because as soon as she's removed from the jury an alternate is placed on the jury and what then an hour or two there is a unanimous verdict that makes it pretty much looks like she's the whole  sure your honor certainly can't i don't think that it is they are depiction that the timeline is deliberations began at ten fifty two am on day one the record reflects that they took a new once break and then they returned i don't know when the new came back with the jury returned at three twenty five for the allen charge so you got about four half hours a lunch break in there i don't know i wasn't there i don't know how soon the no came back or how long the want to breath was any of that and then the next morning deliberations resume to levon thirty three and a verdict by one forty three there's no a function of a new life or maybe there was i don't know but there's really not that much of a difference in the amount on those the law are if our review is abuse discretion and we look at what happened after he allegedly abused his discretion and wondering whether it's even makes sense to look at how quickly they came back i mean the matter come back an hour later and and and  acquit or or if if if if the judge had not to place that sure they might have come back an hour later and convicted i mean we don't but but we have to don't we have to look at what the judge did w the judge did it not in retrospect an hour later i agree on is about what was before judge nixon at that point in time and in an attempt to address mr sir your honest question about can we not look at after the fact  whatever the standard might be or do we also look at the jurors conduct to the extent in their discussions with judge judge nixon they seem to indicate some  frustration or concern about the deliberative process that would not look at that at all we're just we just focus simply just nixon's decision here i think it is appropriate to look at the jurors conversations w if you do look at the the time that the jury deliberated after miss le claire was dismissed in trying to infer whether missile clear was the lone holdout the record reflects that at eleven thirty in the deliberations began they concluded at one forty three the record also reflects that the clerk indicated they had a forty five minute lunch hour or so was one hour and twenty five minutes legal rationale for looking at that post almost nixon decision activity i think the only legal rationale and i look to the brown case is that you if i understand the brown case with the d c circuit is saying is that these issues are always unclear and you have to really sort of read the tea leaves in this area to to make a determination is there an inference is there any possibility that this person was the lone holdout and is she being looked at it through the through the glasses of the district court we just sort of look at it as to what he should have figured out even though he didn't have all the evidence that we have well it's a little tough on district court judges to do it that well but i mean i think judge nixon may have made it tougher on himself  there was he tries to make a credibility determination at the invitation of the government and then doesn't really have a complete rammer hearing he brings out three jurors one juror that knows absolutely nothing she's just the reporter the other jurors that is as tepid is can be who says i might be completely wrong and then you bring out mr gates and you can't really and that argument as force i'm just asking whether you can add to the force that argument stuff that he didn't know like the future and you can understand that what your time is limited but what's your strongest argument that that there's a possibility of any possibility or reasonable possibility that the removals stem from the looks layers of you of the case because we've got here sort of two things going on whether this was what clara should have answered these questions that were dear and we've also got sort of going along with that i guess you know whether there's a possibility any possibility that she was removed because of her view of the case how these other jurors viewed her handling of deliberations and interested in the latter part i think the best evidence is found in the four corners of the note where mrs men in the four person writes i feel that this prior information could perhaps be influencing her ability to reach a fair decision so that goes right to the heart of the deliberative process and then mr gates when he comes out and he sort of all over the map as to what he's trying to tell the judge he goes on to say that there are other factors and then he's cut off and he's not able to complete but i think the note itself indicates that it's influence of that because i think we're getting down to the crux of this case is really what the content of the note is and i'm just wondering if it if we're talking about the discretion of  the district judge if if there was something that was a take and again i'm hypothesizing part the size that there is something that was more clearly a violation of the or a refusal to answer the questions so if if they were specifically asked in a murder case have you ever seen a child die and nobody answers and then injury deliberation somebody says when i saw my child die i said to myself this nobody who does that will ever whatever says something and then the note was written saying so and so didn't answer she saw a child and it's affecting her ability to decide this case fairly you saying in that situation the judge could not not saying that all is well but in that case the actual note says i think it's affecting her analysis you're saying that's the i mean the which means that you can't take that person off the jury your hypothetical is so clear what we have and then we're just getting back to how clear it is that they should have answered questions but you look at the questions you'll have an independent basis to make that decision and you look at the cases i was the only one of the questions i was the only one that had any probing questions of the panel as to whether drug addiction would have any role in their ability to be fair and impartial in  that they are and that's what we asked them about and that's what we need to look but it just i'm just questioning only your argument that the very no shows that there was something wrong with the other jurors  view of the juror who didn't answer the war dear properly by saying and it's affecting her decision when you say and it's affecting your decision that's that's what's typically going to be the concern of the first juror of the testifying juror when they say that the other jurors didn't answer warder questions right i mean and i just don't see how that means that that that there's something wrong by itself are you with me i am with you but it would be my insistence that you had a juror that simply was not getting with the program and she was not voting to convict and consistent with that they may write a letter to the judge hey can we get rid of this one and get another one like we're at the grocery store returning something at the counter and that in this this was not the only jury problem that we had in the case i think you also notice one of my issues is about an issue that developed in jury selection where judge nixon was making what he thought was a joke turned out to be an intemperate comment about these men are in the courtroom to make sure the interesting case of course the case will be submitted and i should note that the appeal by herman majors will be submitted in the briefs as well thank you