morning thank you daniel ball present on behalf of counsel on behalf of the defendant of appellant benjamin quinn mcchesney the convictions in this case must be reversed for a number of reasons they must be reversed because of improper third party contact with a jerk or they must be reversed because the district court improperly restrained the defendant appellant from having contact with the jury to investigate the third party contact with the jury the conviction should be reversed because the district court judge failed to recuse himself after showing partiality in this matter additionally this matter must be reversed because the defendant appellant was not present at critical stages of the proceedings and because the district court failed to issue a subpoena for brady and potentially gig leo material when the defendant appellant requested an ex part subpoena for court records court surveillance court audio visuals that's a lot of reasons but i don't know the we'll get to all of them i would like to talk with you though about the jury issue which seems to have fair number of issues embedded in it so my main query is this because lemon keeps changing her story from at least three jurors were there well then there was one juror well it wasn't the whole jury well it was when we were walking out the door and when you turn in your jury badge that sort of thing so she kept changing her story and in the end the judge made this no credibility finding so in light of the why wasn't sufficient for the district court to make the ruling that it  versions that the district court judge determined showed basically changes over the course of time i think are natural inherent changes or explanations that would have added one way to look at it but then the other way to look at it is there are changes and it goes to credibility so how do we you know we don't get to superimpose maybe i would have decided this differently but i've got to look at the standard of review and that land and the person that looked at the witness we have to find it's clear error the credibility determination i think what the court needs to look at is what occurred at the evidentiary hearing in december of two thousand and fifteen and that testimony was lengthy that testimony was supported by an additional witness taught to remember all their testimony was very similar however it wasn't exact i think the court would have concern if they came in lockstep with a b c and d happened in the court also in addition to finding inconsistency between the prior affidavit and their testimony at trial the court also says that they had a motivation to change to have to not be credible because they were relatives of the codefendant and also the district courts the court staff we testified were very credible as well as david merchant i think he was the attorney for the codefendant who said no they never told me any of these things so there was testimony going different ways and move district court made a credibility determination and so we have to say that smells like dead fish or whatever that standard is how do we get there this record the concern is that the evidence that's actually in the record has not been controverted and by that i mean lennox testimony and remember his testimony in terms of what happened in that elevator in the courthouse it was nothing controver because there's not really anyone to controvert it other than why on the lawyers none of this was ever explained but the story of what they said changed so when you say it isn't they really were basically controvert ing their own story from time to time whether it was in the elevator with it was outside the elevator so i'm having trouble understanding why the fact that you don't have a third party witness is somehow sinks the ship here yes your honor ms remember testimony cannot be said to have changed there was no contact with her initially there was the only the only contact or the only evidence in the record from m errol is what occurred at the hearing with regard to ms linnett i mean we do have the issue of what went into the affidavit in two thousand and thirteen however that's why it's so crucial to have here it's in our estimation because then she's subject to questioning then she subject to cross examination that we told the district court you have to have an evidentiary hearing that was our first ruling the district court to have the evidence you're hearing and made a ruling but i also take  to kind of do the pile on here i mean you can't you can't there is a letter sent to the jurors asking if they had if anyone had observed an incident that tracked the letter i mean that the letter that was sent no one said that they heard anything plus the fact that the record no one ever reported anything to the court and then i guess the other attorney also said i don't believe or some made a made as made don't there own  ty call or whatever so i mean you have all of that going on so the where a judge has to decide ok what do i believe with regard to the other government witnesses first the testimony the court will recall was that essentially they weren't there they were discussing protocols what they would expect to have happened it was essentially pure speculation if it's not pure speculation and in anybody who spent a lot of time the district court knows there's procedures about checking in checking out that your badge and all of that so to credit your statement we would have to say that this is by the procedures that are followed as the juries treated what you do with the badges going in and out of the courthouse we'd have to throw out all procedure and say well now only credit miss on it i don't see how we can why it would be improper for the district court to discount procedures and maybe there's something there that's him as well the concern is that the witnesses testifying about the procedures weren't even sure where they were that day so we have no idea no basis in the record to say that those procedures would have been followed we are in a brand new courthouse in billings montana this is the first or one of the very first jury trials there and we've got nobody who was there that day who can say this was the procedure this was followed i was there that day no reports were made to me well all of your arguments what i would characterize them as those are really good trial court arguments but where here on appeal and you made those arguments and you lost and when to and when people call the ball on who they believe and who they desk believe and how they sort it out we were put in a different position when we review it that's correct judge our concern is that we believe we made a prime official showing that improper contact occurred and so we should have been allowed sufficient contact with the jury from the get go back in two thousand and thirteen we were denied that we should have been given that in twenty fifteen prior to the eviden we're not going to have jurors brought in and harassed or words to that effect so if the district court's credibility determination is not clear error then it seems that they had no no further steps i would as your court were required at least with respect to the jurors what why is that not the case the only witness witnesses we had that day who can testify as to what happened supported the appellant so you want us to find clear error and if the district court was clearly erroneous in its credibility to terminations then these other things follow is that your argument i don't know that they're mutually exclusive i believe we can have clear air as to the findings that the district court made however even without that your honor i believe that we that the evidence reflected a need to investigate jury members to contact them a phone call bringing them into court and investigator whatever ok do you do would you concede that you can't contact jurors for anything that you want let's say your client's convicted and you want to call the jurors and say don't you just feel really guilty about convicting my client and don't you you know are you're going to go to hell and you should change your mind would you say that a court would have to give you the juror less to say i really need to have a heart to heart with the jurors because maybe they can't live with their decision now i don't believe that would be appropriate ok so here the what the court essentially did is said there are times that are appropriate to contact jurors but if i believe that the incident didn't occur the jurors have certain rights to be able to live their lives and not have their information out so that people that you can send someone out to ask questions the way that you want right that was the district court's position our position your  or is that we had extrinsic evidence which infected the proceedings therefore that would be a sufficient basis to contact the jury and so even if your position just that i understand it even if the judge did not believe that it occurred you think that the fact that you called someone found not credible that you still should have been able to go further right is that ok your time is  seems to confer which is to make an initial determination of the credibility of this type of extraneous contact as the court stated in montas it is a preliminary eviden is within the district court's discretion to make a perp religion area determination of not only the nature and extent of the contact and the seriousness of the contact but also the credibility of its source and that comes from the montana's decision where the in fact the court didn't bring the jury and in this case it became quite evident to the district court from the outset that there was some hiding of the ball going on  and i submitted a twenty a j letter dealing with the district court's ruling on this sort of ex party motion for video well what about if let's just say the letter hadn't gone out asking the jurors if they had had yes well now if they had if it just said ok i'm just going to listen to these people and i'm going to decide it didn't happen and i'm not going to have any i'm not going to i'm not going to ask the jurors whether anything happened i think that would have been there would never be that no contact needed to be made by the jurors yes and i think it was wise for the court to do what it did and i think it took in actually we all conferred about this and agreed that it should be done because it helps understand obviously i think the court followed the right procedure here i think the court could have simply held the hearing and made its credibility determination without that because it gave very little weight to that information and the reason i say that is there is some case collar trial where the allegation was that the juror was juries was just mingling with the public in the lobby very similar to this case riding the elevator together and in that case judge hawkins just said you know you didn't ask for a hearing but is obviously not prejudicial and even so in a footnote put number six in that case he said look you haven't met your newest mitchell burden of showing that there were there was actually a contact here so i don't try this case did i yeah no i did not ok did you know in the record a lot of times like i know when i was a trial judge to tell the jurors every time they take a break yes don't don't consider anything down don't try by the scene don't talk to anyone don't do anything got out of it out of do you know whether those given during the trial they were in the court actually summarize a number of its instructions to the jury in the first motion when they denied the motion for a new trial back in two thousand first p r i or to when we sent it back for hearing those admonitions all the time and yes if they were perfect we wouldn't have these juror cases of which we've got several where there's been cut x party contact with the jury so my question is the english case they made the point that it wasn't prejudicial and in the same is true for montes which you quoted for saying you have the discretion decide whether or not to have a live jury testimony but that's where the allegations on their face could not have prejudice jury and here the nature of the allegation is such that it would appear to me that it would be prejudicial if proven to be true sure montes doesn't really tell us anything well montas is still very helpful in l say why because they're the court said look we know this went to the jury right we know the jury was infected with this contact we just we  also know that it wasn't prejudicial here the judge could say with certainty on the record we know there was no contact so we know that the jury wasn't prejudiced by a contact in other words he's reaching the same conclusion by making this credibility finding on the record and incidentally this is exactly what this court ordered us to do when it remanded the case it went to the harbor decision in the harbor decision is basically requires that the court find whether there was credible allegation of contact number one number two if so what deserves heard and finally if if if if you reach those two steps then what is a reasonable possibility that it could affect the outcome jury the judge here was clearly focused on that first element of the test and there's nothing in montana's or other case law in this court that requires the court to bring in the jury during that first district court at page twenty five of the record they basically said we acknowledge under the harbor case that we have the initial burden of coming forward with a credible allegation just on appeal in the opening mean they they take the opposite position we think they've obviously already conceded that and it should be waived for the purposes of appeal the court applied the proper standard from the harbor decision and they agreed to it and the court relied on it that's page six of the government and so your position is at the very never shifted if i if i understand it that is our position your honor and just just to make the record complete the district court here reset it exactly that test that the defendant is you know the parties agree the defendant is going to go ahead and make his profession case and then the burden will shift and we'll talk to the jurors if we need to and that was the essence of what the district court stated that at the beginning of this hearing now we after that we went through the hearing and it became quite apparent that there were some large problems with the story that was being told i'm not going to go through all of them i think the court findings were adequate adequately supported in the record and are not clearly erroneous but i think the most telling of them is the allegation page fifty four of the record from page ninety four from remeron was that there was just sort of this general mingling and that would be a dramatic departure from our court house protocol it's very clear that it would have been noted by not only court security people but perhaps lawyers and other persons  counsel says this is the first trial in a new courthouse and so procedures possibly were not instituted sure in i don't know for the record if it was the first trial i'm not sure that that's true i  know that the record contains information that this protocol was developed that the prior courthouse particularly the protocol of gathering the jurors and making sure that they are sort of taken out of the courthouse together without contact that was a big point because the prior courthouse had had no more ingress egress concerns about contacts with the jurors so it was clearly a wheldon delap and well known protocol to take the juries together the juror dream members together to the elevator and out the building and that was the testimony you know finally i you know the district court here made i think adequate findings clearly from page three thirty four of the record which i cited in our twenty a j letter the district court felt like it was being manipulated by these changing stories and that's clearly what was going on they asked for this fifth floor video and then that yet they allege that the contacts occurred in the first floor where why would they do that why would they ask us for that fifth for video why when they asked for our help they made an x party motion for that well the reason is they wanted to check it to see if it would contradict the story that they ended up telling two years later about all these dramatic violations of courthouse protocol it simply didn't happen there may have been a person who was exposed to these comments but it certainly wasn't one of the jurors and if if one of the letters had gone out and a juror had responded yeah there was a contact clearly the court would have called the jury in and we would have examined them on that issue that that wasn't necessary here and we think that the district or should be affirm thank you with regard to contacting the jurors it is true that one jury member did not respond which causes concern as to again what that jury member may know may have known what may have occurred there as far as the protocol again there's no evidence in the record that these protocols whatever that may mean were actually followed it's a concern that the jury administrator in the courthouse was not the jury administrator for this particular trial and so the government brings her in two and a half years later and that particular jury administrator is unable to testify with any knowledge about what happened at this particular trial with regard to the burden here regardless of whether it's the defendant appellants initial burden to make a prime official case or whether the government must prove from the very beginning beyond a reasonable doubt that this did not occur it's the opponent's position that those burdens were satisfied we believe the keating case