morning morning start with the other the other issue ok that one seems like a real stretch under plainer but i will of course will concur with that with ok well the second issue that we have is there's two really two parts the second issue the first part i believe that i think the law is plain that the tr used the wrong standard in regarding whether or not the trial notebook that was discovered to have the word guilty on it there you know if you have the worst kilty on it and had the impression that somebody had written guilty isn't that the fact indentation but that when you said it had the word guilty written on it it seemed to me a little stretch it had the impression cardboard cover and somebody had a piece of paper and they wrote guilty on the paper and it kind of went through to the is that what we're talking about if that judge's indentation on the cover of the no and was when did the juror first notice that became the attention of the court on the fourth day so for the fourth day of testimony i know that but so were you your answer is that we don't know when the jury him or herself first became aware ok because the judge assumed that it had been left in a prior case and i couldn't quite reconcile that with the juror statement i think the rich the reason the jurors first reason is that the jurors i think somebody is trying to set me up or something like that it was this is in the people of her she's with her supporters and appeared very deeply there were some outbursts in the courtroom and then there were some yelling across the street and so motions or this issue was brought before the court and i believe this was part of that tail end of this dealing with this issue of the outbursts in court and on the street and then this was said by the juror ok so the jurors statement that i think somebody might be trying to set me up suggesting that that he is a he or she i'm sorry karen member believe it that he first noticed it during the trial not because that the judge's assumption was that somebody left that from a prior case which would suggest that the jury would have noticed it on the very soon they had the notebook right but this was he said four days into trial there was no my read of the transcripts on the record never viewed as there was no indication that it appeared on a prior day that i mean he didn't say he did and they have but we don't know there was no talk to a couple of the jurors about it  it was during the process yes i guess that stuff would be a good one i don't know trying to think exactly when i don't recall there is a testimony as to when they were shown specifically that they were previous a notebook cover it's not part of this case anymore but you never there's no determination know any kind of hearing as to what actually happened no witnesses were called no bailiffs were some who would be go would he have to do that he was he problem for the case itself because he came from a prior case if it come from an outside influence if there had been let's say somebody in the courtroom it slipped up and done you have any evidence at all of course not because there is no what you've got investigators they're no longer under oath if it's a big deal you've got investigators you can go talk to jurors afterwards there's no law against that i used to do it when i was trial lawyer so there's been plenty of an opportunity but if nothing is shown up thus far why is your only prejudice to your client based upon the instructions given by the jury that they're to disregard anything they know about that and all of them said they could  doesn't have to the judge says for purposes i see this takes care of it you say he's made a mistake he should have had an evidentiary hearing then who did you ask for an evidentiary hearing  it's a much the burdens on the government to show it didn't affect people so that's why it's had been poured distinction between expert to communication and the strings of evidence it's hard to communications are things like have no this is nothing to do with the case when somebody same extrinsic evidence i thought under our case law for going about with the seventh circuit or so i thought that under our case small piece of evidence at issue at least in theory had to be something that could have been introduced to the jury and nobody would you i believe that is the standard that's what x party contact is now i ask you i said and you disagree with me that it took for this to be an extra evidence case the evidence at issue would have to be an item of  does pertain to fact a controversy will then we think we go to the factors i said and i don't think there's any at least i'm not aware of any that has to be admissible or something like that got it's one of the factors i think under the under the tess that's part of it if it is a cumulative or not is that you know when you go to that test problem is you know that i think that's the right test if you go through those factors i think there's clearly in my client's favor all these the vast majority of these tort your honor of very telling appearing for the united states i think the argument on the dual role issue is amazing in the sense that he stretches it beyond any recognition of what's required by the law  simple answer to the argument that he makes is that agent carter did not give any expert testimony whatsoever his sole role was to summarize bank records there were eight hundred pages of bank records he did precisely what rule one thousand expense that came out of those accounts even with reference to the underlying evidence by bates numbering referencing the particular bates number page on which the entry appeared and we have no b s q specific question getting back to this i wanted to affidavits the defense did not submit anything at any point during the hearing or even after the trial in essence it came up in the context of the removal of two protesters from the courtroom who upon being removed to the courthouse steps made talking to two other people all right was there any evidence at all or claim that that was due to anything other than an unfortunate episode  t took place in continuing to use the same covers that is was or any evidence claim or otherwise that someone was intentionally trying to influence or you're  not it was my understanding of the record i just want to be god that was that that was the state of the record your honor i was trial counsel i remember it vividly we were all surprised in answer to judge walker's question these were little three ring not three ring spiral topped notebooks the small size not not a whole page and knowing the government i believe they said scowcroft on the cover and we were there and as we dealt with the individualized war dear each juror and all the alternate so on issue one not before the court namely the protesters this jerk comes to sidebar and says by the way i've got this issue it appears that when i turn the book i see the imprint of the word guilty on the outside cover and there is a discussion among the parties as to how that could have happened the court points out what we do in this court houses we removed the pages containing the notes of the jurors at the conclusion of each trial but then we recycled the notebooks and i'm sure this came from somebody putting a piece of paper on top of this notebook in some other case by some other juror and wrote the word guilty and that's the imprint that you see my recollection although i don't believe it appears in my friend's brief is that the  cover itself was marked in exhibit was ripped off of the notebook and it was put in the court record for later review and there was no suggestion whatsoever that this was an external influence pacific to this case is surely not like the vasquez case that my colleague quotes because there the word guilty appeared right in the pages of the notes of the juror leading the district judge to come to the conclusion that the logical person who wrote it was another jerk because no one else except for the courthouse staff would have access to the notebook this was as the court put it some other trial some other juror unrelated to this case there was no discussion or any information from the defense to contravene that assumption can i ask you though about the statement tell me if i'm wrong on the statement but i mentioned to your opponent that i thought the juror had said  aren't that the german basically had brought this up for the first time four days in which i would have expected the juror you know to have seen that right away is it the case that the jurors got the same notebook each day  when the trial starts after the opening statement is concluded the notebooks are passed out and each one has a notebook that they keep for the duration but in this case for three weeks ok so it was four days in and i'm stepping slightly out of the record here if i have the court's permission but the word was not readily discernible it was like in black ink you sort of had to turn it at an angle to catch the reflection in the light there is nothing in the record as to when that your first noticed it ok your first brought it up on day four which was after a three day weekend after the first week of the trial and it was in the context of the individualized why do your on the impact if any on the protesters so there is there but i would submit that what we're dealing with as the court has pointed out and as a fellow panel of this court has already found is we're dealing with the normal abuse of discretion dealing with a motion for mistrial because this  is ex parte contact with the jury it is not extrinsic evidence the guilty was was completely free floating from any of the evidence in the case it wasn't in the notes it wasn't a comment on the meaning of particular evidence it didn't even come in the context of this case so under those circumstances it wasn't written by a juror on this particular trial because the juror who brought it to the attention of the court had had that notebook for the full time indeed and your honor he said i didn't write it which is any reading record but were there any discussions or record to show us why he made that comment or why he made that statement there is nothing in the record in one council or the court other than the court's unreported statement that no one set you up and here is how it must have happened it came from a different trial i can say your honor my interpretation in retrospect is that this was a highly emotional politically charged trial as my colleague has already pointed out it came on the heels of a protest that was fairly disturbing but again not raised as an issue on this appeal it was in the first panel case and there was a lot of screaming and yelling and obscenity s and people making threats outside the court room putting things on you tube basically questioning the authority of the court as well as the united states government this was the context of the trial perhaps that flavored the jurors comment that somehow someone is setting me up because they had already been individually questioned by these two protestors about their ethnicity their willingness to convict people of crimes when these people weren't they were  environment it may have been a fraud trial but i would say it was more of a political protest overlay that gave context to the trial thank you i guess what would have been nice i'm not saying it was required here on the district judges part but it would have been nice if we had known when the jury first noticed that because the judges are so mean that i thought imprinted been there all along from day one and if the jurors had said no your honor i specifically remember looking at this thing and it wasn't there it just appeared yesterday or appeared then of course it's a whole different case and so what we have is the judges assumption that well though that must have come from a different case but we don't have the follow up question to the juror that i think one of you know in any doubt that i call it that there's nothing in the record that contradicts the judge's assumption but we don't really know for sure i couldn't agree with you more you are listening to the earlier argument where you were talking to one of my colleagues and you say from a different district i agree i mean that's on me i should have somehow thought to bring it out but ultimately i think that's not the standard of review here the issue really is where the court abused its discretion in handling the matter judge seabright conducted a very very searching careful and thorough inquiry of all of the jurors it appears in our supplemental excerpts of record he called every one of them into talk about external influences and not allowing them to come to bear on the verdict as to the three who saw this he made it clear that they understood that his assumption was the gospel that this was just a word that just came from a different trial it had nothing to do with the evidence of this case it could not enter their deliberations it could appeal to assume that his instruction was followed and the proof is in the pudding as i pointed out in our brief we had two defendants in the jury was instructed to consider the evidence as to each defendant in each count separately and they acquitted on three counts hardly the result of a jury that would have been unduly influenced by some external influence saying hey this person is guilty the guilty was unspecific to any defendant it's just the word guilty it wasn't guilty as to defend it and i have a halon eventer all over but not as to tell us who was acquitted it shows that the jury did its job and it kept its word and it gave careful consideration the other dence and i simply don't see anything in the record suggesting there was an abuse of discretion could it have been more perfect yes on hindsight it could it always could be ok thanks very much for your argument mike you give defense counsel a minute for a vote if you need it up to you and each one has one and there's nothing in this record this says that the one that was did had the imprint of guilty ever passed from one somebody to somebody else it was always with should have had we should have some type of period where witnesses call mr baylor would be the witness they all of the jurors possibly the bailiff for sure the people in charge of security for the court it was we just talked about there was a big ruckus and in the court there was a political thing no one on it was very hot it was in the media and so the idea that we can just you know musta been a previous person there's just no evidence for that at all that's why there should have been here ok