[00:00:11] Speaker 01:
Good morning and may it please the court Rachel Robinson for defendant and appellant Shariah Bolandian I'd like to reserve three minutes for rebuttal And with the court's permission I will first address the biased juror issue and I will turn to mr. Agarwal statement and then time permitting I will briefly address the procedural errors at sentencing

[00:00:35] Speaker 01:
The district court here committed structural error when it failed to excuse the juror, who twice stated that he was not sure that he could be fair.

[00:00:44] Speaker 01:
That juror was never rehabilitated, and that biased juror became the foreperson, guiding the jury's deliberations.

[00:00:54] Speaker 01:
This error infected the framework of the trial in such a way that cannot be measured by this court on review.

[00:01:02] Speaker 01:
And this is not the typical jury bias case.

[00:01:05] Speaker 01:
Juror number six was not merely attempting to honestly answer the district court's questions during voir dire.

[00:01:12] Speaker 01:
Instead, juror number six heard a full day's worth of evidence.

[00:01:17] Speaker 01:
And based on what he heard in that evidence, he affirmatively raised this issue.

[00:01:21] Speaker 01:
And when asked by the court, stated that honestly, he was not sure if he could be fair.

[00:01:29] Speaker 01:
At that point, the district court had two options, either excuse the biased juror or remind the juror of his constitutional obligations to be fair and attempt to rehabilitate him.

[00:01:42] Speaker 01:
The district court here did neither.

[00:01:44] Speaker 01:
Instead, the district court, excuse me, told the juror that it was, quote, probably a good thing.

[00:01:51] Speaker 01:
And then he placed the onus on that juror to re-raise the issue at the end of the case.

[00:01:57] Speaker 01:
There is no precedent

[00:01:59] Speaker 01:
for this procedure and that is for good reason.

[00:02:03] Speaker 01:
Jurors must listen to evidence fairly and impartially and must presume in a sense until the close of evidence and deliberations begin.

[00:02:17] Speaker 02:
defense counsel or trial counsel say that he had no objection for to juror number six continuing to serve?

[00:02:30] Speaker 01:
Trial counsel did and I would point the court to the Supreme Court which has stated that courts must indulge every reasonable presumption against waiver of a defendant's fundamental constitutional rights.

[00:02:42] Speaker 01:
There can be nothing more fundamental to the right to a fair trial than the right to a fair jury.

[00:02:47] Speaker 01:
The waiver here needed to come from Mr. Bolandian himself.

[00:02:53] Speaker 01:
And I would look to Rule 11 as an example.

[00:02:56] Speaker 01:
Rule 11 requires a defendant to personally waive rights that are materially identical to the right at issue here.

[00:03:04] Speaker 01:
We would never allow an attorney to waive a defendant's rights to testify.

[00:03:08] Speaker 01:
or to remain silent.

[00:03:09] Speaker 01:
We would never allow an attorney to waive a defendant's rights to counsel, to waive the right to a unanimous jury.

[00:03:17] Speaker 01:
The trial counsel's acquiescence here was simply insufficient to waive that right.

[00:03:22] Speaker 01:
And again, I would also point the court to its analysis in Knight.

[00:03:27] Speaker 01:
There, the court stated that there were, quote, a limited class of structural errors that cannot be waived and that require automatic reversal.

[00:03:36] Speaker 01:
And the right in night, in night the defendant was challenging the remote participation of jurors.

[00:03:43] Speaker 01:
That right is far less profound than the right to an unbiased jury that we have at issue here.

[00:03:50] Speaker 01:
And even in night, this court found that the waiver was sufficient because the district court sought that waiver from the defendant himself.

[00:03:59] Speaker 01:
The waiver was knowing, intelligent, and voluntary.

[00:04:02] Speaker 01:
We simply do not have that here.

[00:04:05] Speaker 02:
Yeah, the procedure troubles me that the judge would allow the juror to continue listening to evidence.

[00:04:16] Speaker 02:
And then if it got to a certain point, put the onus on him to raise his hand and say, oh, I can't be fair.

[00:04:24] Speaker 02:
I think I mean, it's very irregular.

[00:04:27] Speaker 01:
It is irregular.

[00:04:29] Speaker 01:
And I think that that's that's right here.

[00:04:31] Speaker 01:
We cannot know

[00:04:32] Speaker 01:
the extent of the harm done to Mr. Bolandian when he had a juror who honestly stated that he was not sure that he could be fair and then became the foreperson.

[00:04:46] Speaker 01:
I think this falls squarely within the types of structural errors that this court addressed in Knight that cannot be waivable.

[00:04:54] Speaker 01:
There's nothing in this record to indicate that Mr. Bolandian himself

[00:04:58] Speaker 01:
knowingly, intentionally, and voluntarily waived his right to an unbiased jury.

[00:05:07] Speaker 01:
And unless the court has any other questions about that issue, I would like to turn to the admission of Mr. Agarwal's statement.

[00:05:22] Speaker 01:
Mr. Agarwal was the alleged tipper.

[00:05:25] Speaker 01:
His hearsay statement that he may have accidentally let slip information to Mr. Bolandian was self-serving and evidently exculpatory.

[00:05:34] Speaker 01:
The district court was correct in its initial ruling to exclude that statement as to Mr. Bolandian.

[00:05:43] Speaker 01:
The district court's inexplicable about face was an abuse of discretion and it requires reversal.

[00:05:50] Speaker 01:
The only change circumstances here between the district court's initial ruling and its subsequent one was Mr. Agarwal's acquittal at trial.

[00:05:59] Speaker 01:
based on his defense, that if he tipped Mr. Bolandian, it was an accident.

[00:06:05] Speaker 01:
And I'd like to take the court back to the severance motion, where this issue was fully litigated and fully briefed.

[00:06:12] Speaker 01:
And during that hearing, the government conceded that portions of Mr. Agarwal's statement were a false exculpatory.

[00:06:18] Speaker 01:
They were not against his interest.

[00:06:21] Speaker 01:
The government also conceded that, quote, there's a little bit of blame shifting

[00:06:26] Speaker 01:
and the cases on penal interest exception don't allow for the admission of that.

[00:06:31] Speaker 01:
As the statement was introduced against Mr. Bolandian, that blame-shifting nature remains.

[00:06:39] Speaker 01:
The only reason that Mr. Agarwal would have made a statement like that was because he was concerned about the optics and he wanted to shift blame away from himself to Mr. Volandian.

[00:06:50] Speaker 03:
Is there any reason why it can't be blame shifting and also against Mr. Agarwal's interest at the same time?

[00:06:57] Speaker 01:
I don't think within the exception here because the statement should only be admissible if it contains sufficient indicia of trustworthiness that confrontation and cross-examination are not necessary.

[00:07:11] Speaker 01:
That we don't have that here because of the blame shifting nature of the statement.

[00:07:15] Speaker 01:
It lacks that indicia of trustworthiness and Mr Bolandian should have had the opportunity to confront and cross examine Mr Agarwal on the context of that statement.

[00:07:25] Speaker 01:
Did Mr Agarwal actually remember providing Mr Bolandian with this information or was he concerned about the optics of these trades?

[00:07:34] Speaker 01:
Because we know that Mr Agarwal was nervous about the optics

[00:07:38] Speaker 01:
of this trade when he made this statement.

[00:07:42] Speaker 02:
So Agarwal was acquitted?

[00:07:45] Speaker 02:
That's correct.

[00:07:46] Speaker 02:
And then he came in and testified against Bolandian?

[00:07:50] Speaker 01:
He did not.

[00:07:50] Speaker 01:
This statement came in as a statement against interest.

[00:07:54] Speaker 01:
So it was introduced for its truth.

[00:07:56] Speaker 01:
And Mr. Bolandian had no ability to cross-examine Mr. Agarwal about the circumstances surrounding this statement.

[00:08:04] Speaker 03:
How did the statement come in?

[00:08:06] Speaker 03:
Remind us.

[00:08:07] Speaker 01:
The statement came in through a mutual friend, Mr. Roskin, who Mr. Agarwal purportedly made the statement to.

[00:08:15] Speaker 01:
And so Mr. Volandian was able to confront and cross examine him as to his recollection of the statement, but he did not have the ability to cross examine Mr. Agarwal as to

[00:08:24] Speaker 01:
whether this statement happened, how it happened, why he made it, his incentives for making this statement.

[00:08:32] Speaker 01:
It was just presented to the jury for its truth.

[00:08:37] Speaker 01:
And the prejudice from the admission of this statement is profound.

[00:08:44] Speaker 01:
Mr. Bolandian had presented evidence through an expert that these trades were consistent with his general pattern of trading.

[00:08:52] Speaker 01:
He also presented evidence of publicly available information prior to both trades that would have supported a decision to make these trades.

[00:09:01] Speaker 01:
There were SEC documents publicly filed.

[00:09:03] Speaker 01:
There was chatter on Twitter about how well PLXT and ET were doing.

[00:09:08] Speaker 01:
There was an article from Bloomberg about the potential ET merger.

[00:09:14] Speaker 01:
And critically here, Mr. Bolandian did testify.

[00:09:17] Speaker 01:
And the jury had to weigh his credibility against this statement whose trustworthiness could not be tested, whose credibility could not be tested.

[00:09:28] Speaker 01:
And Mr. Agarwal was acquitted based on this same evidence of timing.

[00:09:35] Speaker 01:
So this court cannot be assured that the admission of this self-serving statement

[00:09:41] Speaker 01:
did not materially affect the verdict.

[00:09:45] Speaker 01:
And so for that second reason, reversal here is required.

[00:09:50] Speaker 01:
And unless the court has any other questions about that, I'd like to briefly turn to sentencing.

[00:09:55] Speaker 01:
The district court never calculated the guidelines during the sentencing hearing.

[00:10:01] Speaker 01:
And while we know that district courts have broad discretion as to how they calculate the guidelines,

[00:10:06] Speaker 01:
They have to calculate them.

[00:10:08] Speaker 01:
And here we have nothing.

[00:10:10] Speaker 01:
And so this court is being asked to infer the reasonableness of the sentence from nothing.

[00:10:16] Speaker 01:
And the Supreme Court in Pew as well as this court in Cardi have stated unequivocally that district courts must begin their sentencing analysis with the guidelines.

[00:10:27] Speaker 01:
That anchors both the district court's discretion as well as this court's ability to review the reasonableness of that sentence on appeal.

[00:10:37] Speaker 03:
Why was adopting the, why wasn't the adoption of probation's recommendation sufficient to show that the court had calculated the guidelines?

[00:10:48] Speaker 01:
So the district court relied on a letter from probation and that letter did not outline the guideline calculation.

[00:10:55] Speaker 01:
It just provided the guideline range and then it addressed conditions for supervised release.

[00:11:01] Speaker 01:
And the district court

[00:11:03] Speaker 01:
read that letter saying that it was going to accept those conditions of supervised release, but it was not going to accept probation's recommendation for a sentence.

[00:11:13] Speaker 01:
So that letter did not provide any insight into whether or not the district court had in fact considered the calculations.

[00:11:22] Speaker 01:
And Mr. Bolandian in his sentencing memo had challenged probation.

[00:11:28] Speaker 01:
Calculations as to loss and he did that based on the district court's prior statement that the district court had intended to consider loss as to each defendant individually Probation did not do that and so it is unclear from this record whether or not the district court had intended to accept mr.. Boland Ian's

[00:11:50] Speaker 01:
loss calculation and therefore adjust the guidelines accordingly, whether the district court was just accepting the probation guidelines calculations.

[00:12:00] Speaker 01:
We just, we don't know how the district court got there.

[00:12:03] Speaker 03:
The guidelines that the, the guidelines that the court used were 33 to 41 months and he sentenced the defendant to 24 months.

[00:12:13] Speaker 03:
What, what are you arguing the guideline range should have been?

[00:12:17] Speaker 01:
The guideline range should have been 27 to 33 months had the district court accepted it.

[00:12:23] Speaker 03:
So the sentence is still below those guidelines?

[00:12:25] Speaker 01:
It is.

[00:12:26] Speaker 01:
And we filed a 28-J letter with this court last week pointing the court to the Ho Romero case, which came out, I think, about two weeks ago.

[00:12:33] Speaker 01:
And in that case, this court stated that even where a sentence is below the correct guideline range, if the guidelines are not calculated properly, that sentence

[00:12:44] Speaker 01:
is still procedurally erroneous, because the district court may have intended to vary to the same degree down from the correct guidelines range.

[00:12:54] Speaker 01:
And again, we just don't know what the district court's basis here was for giving the 24-month sentence, because the district court just did not, at the outset of the sentencing hearing, calculate the guidelines.

[00:13:09] Speaker 01:
The district court listened to the party's arguments without

[00:13:13] Speaker 01:
without ever anchoring that discussion in the guidelines.

[00:13:17] Speaker 01:
And I see that I'm short on time, so unless the court has questions, I'd like to reserve the rest of my time for rebuttal.

[00:13:23] Speaker 01:
Thank you.

[00:13:50] Speaker 04:
Good morning, Your Honors.

[00:13:51] Speaker 04:
Andrew Roach on behalf of the United States.

[00:13:54] Speaker 04:
I'd like to begin where defense left off and talk about the alleged biased juror issue.

[00:14:00] Speaker 04:
First, there's a salient point that the government overlooked in putting in its brief that the government wanted to point out, that prior to this juror being seated on the jury, this juror was asked whether he could be fair to both sides.

[00:14:19] Speaker 04:
That said ER 977.

[00:14:23] Speaker 04:
This juror said he could be fair.

[00:14:26] Speaker 04:
This juror also explained that his father worked at his uncle's investment firm, and there were no further questions.

[00:14:36] Speaker 04:
And the trial began.

[00:14:37] Speaker 04:
And after the close of the first day of testimony, after the government had presented its opening argument

[00:14:43] Speaker 04:
and after defense had presented his opening argument and the government had put on its first witness an executive from J.P.

[00:14:50] Speaker 04:
Morgan, the juror who was scrupulously honest mentioned that his uncle might have some sort of connection with J.P.

[00:15:00] Speaker 04:
Morgan and he disclosed it to court.

[00:15:03] Speaker 04:
And then at the request of defense counsel, there was a discussion about further questions, and he was asked whether he could be fair to both sides.

[00:15:12] Speaker 04:
And he said, honestly, I'm not sure.

[00:15:16] Speaker 04:
Now the government's position, first of all, is what transpired afterwards was actually defendant waiving this claim.

[00:15:25] Speaker 04:
Defendant agreed that no further questions were necessary He didn't he was presented with the opportunity the government said right then and there that we can strike this juror if the defense would like and rather this This defense council agreed to have this juror and he actually set the record We have no objection to him continuing to serve and he agreed to have this jury continue to serve counsel Can you point to any case ever?

[00:15:52] Speaker 02:
It allowed this type of procedure as to a juror who said in open court that they can't be sure whether they can be fair.

[00:16:04] Speaker 02:
Any case at all?

[00:16:05] Speaker 04:
Any case?

[00:16:07] Speaker 04:
Well, I think there are cases where they're saying, I'm not sure.

[00:16:10] Speaker 04:
I think the Mitchell case is a case where people are expressing.

[00:16:13] Speaker 04:
So first of all, he said, to be clear, he said he could be fair to both sides.

[00:16:17] Speaker 02:
He could be fair before he heard enough of the case to question whether he could be fair.

[00:16:22] Speaker 04:
Well, and to be clear, I think in the 2018 Gonzalez case from this court, so after you start to hear evidence, I think it's a slightly different analysis.

[00:16:33] Speaker 04:
And in the 2018 Gonzalez case from this court, that is when a juror began to express some concerns about being fair after that juror had seen some pretty damning evidence.

[00:16:44] Speaker 04:
And in that case, this court said, we do not presume that jurors become biased as a result of exposure to evidence being properly put before them.

[00:16:55] Speaker 02:
Well, that isn't quite this case.

[00:16:57] Speaker 02:
This case is more about actual business between JP Morgan, who was very significantly involved in the periphery of this case,

[00:17:13] Speaker 02:
and insider trading.

[00:17:17] Speaker 02:
So are you aware of the Kachezian case?

[00:17:23] Speaker 04:
I am aware of that, Your Honor.

[00:17:24] Speaker 02:
Okay.

[00:17:25] Speaker 02:
Well, didn't we very strongly say that we shouldn't put the onus on the juror to speak up as to whether or not he

[00:17:35] Speaker 02:
In this case, it was her feelings toward the accused were the justifiable consequence of the evidence or due to her earlier life experiences.

[00:17:45] Speaker 04:
Yes, and to be clear, the government is not resting its hat on the procedure that you questioned that was irregular.

[00:17:53] Speaker 02:
Isn't it the responsibility of the judge, not the juror and not the parties,

[00:18:02] Speaker 02:
to ensure the defendant a fair trial.

[00:18:05] Speaker 02:
I mean, you cannot waive your right to a fair trial.

[00:18:09] Speaker 04:
Well, you could waive a lot of rights, Your Honor, but it is the court... The defendant can.

[00:18:13] Speaker 02:
The counsel can't waive his client's right to a fair trial unless the client

[00:18:18] Speaker 02:
says, OK, I'm going to plead guilty or whatever.

[00:18:21] Speaker 04:
Well, we could talk about the other issue, about structural waiver.

[00:18:24] Speaker 04:
But I think in this case, to answer the court's question, yes, the court has an obligation to a juror's affair.

[00:18:31] Speaker 04:
I think what was said on this record of what this juror's saying obviously fell well short.

[00:18:38] Speaker 04:
At most, at most, what this called for was additional questioning to determine if there was actual juror bias.

[00:18:49] Speaker 02:
They called for something besides letting the juror just sit there and listen to more evidence.

[00:18:58] Speaker 02:
I mean, I think there are some people who would not have the strength to

[00:19:05] Speaker 02:
you know, say, oh, I think my prior experience with my father and my uncle's business, this is definitely, you know, that's telling me this is definitely insider trading and this guy's guilty.

[00:19:22] Speaker 04:
Well, I want to tease apart a couple things.

[00:19:24] Speaker 04:
First of all, I don't think defense really relies on the connection, the uncle's tenuous at best connection to JP Morgan, which itself was a tangential player.

[00:19:36] Speaker 04:
Insert any name of investment bank.

[00:19:39] Speaker 04:
JP Morgan is the largest bank in the United States, so it just happened to be that.

[00:19:43] Speaker 04:
I think where defense is really resting its arguments is he said he was not sure he could be fair.

[00:19:49] Speaker 04:
And I think in that case,

[00:19:51] Speaker 04:
the fact that the day before he said he could be fair, and he clearly said it before he was seated, and now that he said he was not sure he could be fair, at best this is a case of maybe there was further investigation of potential juror bias that was required, but the Sims case that this court has found that failing to investigate potential juror bias is really a procedural error and not

[00:20:17] Speaker 04:
a structural error by any means.

[00:20:20] Speaker 04:
But even if there were concerns about how the district court handled it, again, the defense waived that at the end of trial when they decided they didn't need to revisit.

[00:20:33] Speaker 04:
And they were given the opportunity, and the government discussed with defense counsel, and they agreed on the record that this juror could continue to serve, and the other alternates were excused.

[00:20:45] Speaker 04:
So for that reason, we believe that defendant has waived this claim altogether.

[00:20:53] Speaker 04:
And I know defense raises certain arguments about how this is a non-waivable claim, and it's a structural error.

[00:20:59] Speaker 04:
I think this court has struggled with what that dire footnote has said, and I think Mitchell says that.

[00:21:05] Speaker 04:
And I think if you look at Knight, when Knight actually laid out and articulated the classes of structural error that exist, it did not hold that a biased germ was one of them.

[00:21:16] Speaker 04:
It did mention that a biased adjudicator is, and it mentions the tummy case.

[00:21:22] Speaker 04:
which again was what the footnote in Dyer relied on to say that this is a structural defect.

[00:21:29] Speaker 04:
But we believe that this is something that the defense counsel could waive and in fact did waive.

[00:21:35] Speaker 04:
And we cited in our papers where there are cases and there are treatises discussing that issues of juror selection and issues of juror removal are within the scope of authority of an attorney.

[00:21:50] Speaker 04:
And this court's case law,

[00:21:51] Speaker 04:
has been clear that things that are within the scope of an attorney can be waived by an attorney on behalf of a client.

[00:22:00] Speaker 04:
Even if this court applied what we think is plain air review, which is what this court did in Mitchell,

[00:22:06] Speaker 04:
I think when you compare the cases of actual bias to this case, it's quite clear that this juror was not biased at all.

[00:22:15] Speaker 04:
In Gonzales, who had a very different situation where a juror was previously married to a drug dealer, and then expressed three times when asked, expressed concern about if she can be fair, and defense counsel challenged it below.

[00:22:32] Speaker 04:
And in Mitchell, this case found that, first of all, the raising it below was a crucial difference.

[00:22:39] Speaker 04:
But then you look at Mitchell, where the case was the juror had an uncle who was murdered by a drug dealer.

[00:22:45] Speaker 04:
And she equivocated whether she could be fair or not.

[00:22:50] Speaker 04:
No one challenged that.

[00:22:52] Speaker 04:
And this court found that that was not air.

[00:22:55] Speaker 04:
So we believe that this juror was not biased.

[00:22:58] Speaker 04:
We believe that defendant waived that claim.

[00:23:01] Speaker 04:
But even if the court looks at any potential bias, there was none here.

[00:23:04] Speaker 04:
And consistent with this court's decision in Mitchell, that that was not a grounds to reverse.

[00:23:12] Speaker 04:
I'd like to go to the next point, the Agarwal statement, unless, of course, any other questions of juror.

[00:23:17] Speaker 04:
So just to lay out the facts a little bit.

[00:23:19] Speaker 04:
So there were three different defendants involved here.

[00:23:22] Speaker 04:
There was Agarwal, the insider, who worked at JP Morgan.

[00:23:25] Speaker 04:
There was Belandian, the man in the middle.

[00:23:28] Speaker 04:
And then there was Sadiq, the third defendant.

[00:23:31] Speaker 04:
So after

[00:23:33] Speaker 04:
Defendant number two, Blandion and Siddique traded on it.

[00:23:36] Speaker 04:
Agarwal had a, about a couple months afterwards, Agarwal had a lunch conversation or a dinner conversation with his friend Leo Roskin.

[00:23:46] Speaker 04:
Leo Roskin was aware that Agarwal had been trading with Blandion in an account and had incurred substantial losses with Blandion regarding various trades they had made.

[00:23:59] Speaker 04:
During the context of that conversation between two former JP Morgan investment bankers, talking about trading, which they do, talking about the losses, at that point, Balandian said, I might have accidentally let it slip about ET once or twice, which begs the question whether it was an accident that happened twice, let it slip to Balandian about the ET deal, and then afterwards, he told me our losses are taken care of.

[00:24:30] Speaker 04:
Now, when Leo Roskin heard that statement, he was concerned.

[00:24:34] Speaker 04:
He thought it could be insider trading.

[00:24:37] Speaker 04:
He told Agarwal to get an attorney, and they stopped that conversation.

[00:24:42] Speaker 04:
Now, Agarwal, of course, was convicted, and so that at Belandian's trial... Wait a second.

[00:24:46] Speaker 02:
I thought Agarwal was acquitted.

[00:24:48] Speaker 04:
I mean, acquitted, I'm sorry.

[00:24:50] Speaker 04:
Yeah, Agarwal was acquitted.

[00:24:52] Speaker 02:
Okay, so the actual guy who did the insider trading is acquitted.

[00:24:58] Speaker 04:
Well, they all did insider trading, the actual insider.

[00:25:01] Speaker 02:
The actual insider.

[00:25:02] Speaker 04:
Yeah, the actual insider who received the material non-public information through his job at JP Morgan.

[00:25:07] Speaker 04:
Oh, his partner.

[00:25:08] Speaker 04:
And he tipped his buddy, his college buddy.

[00:25:11] Speaker 04:
So obviously, Mr. Blandin committed insider trading.

[00:25:16] Speaker 04:
The governance theory was he got the inside information from the insider, Agarwal.

[00:25:21] Speaker 02:
But they were partners.

[00:25:22] Speaker 02:
Wasn't Agarwal also benefiting from the insider trading?

[00:25:26] Speaker 04:
Correct, correct.

[00:25:27] Speaker 04:
They were informal partners in a trading aspect.

[00:25:31] Speaker 04:
And your honor is right, one of the elements of insider trading is the insider has to get a benefit.

[00:25:36] Speaker 04:
And so the government's theory in this case.

[00:25:38] Speaker 02:
So they were both insider trading?

[00:25:41] Speaker 02:
Correct.

[00:25:41] Speaker 02:
So how come Agarwal got acquitted?

[00:25:45] Speaker 04:
Well, they were tried separately, your honor.

[00:25:46] Speaker 04:
They had different juries.

[00:25:50] Speaker 02:
Which begs the question, was this jury biased?

[00:25:53] Speaker 04:
Well, again, respectfully, we don't believe so.

[00:25:55] Speaker 04:
But then going to the actual admission of the statement, obviously they're not arguing law of the case.

[00:26:01] Speaker 04:
It was quite clear that the court could consider.

[00:26:04] Speaker 04:
But the court's prior comment when it severed the trials was really about the differing defenses, the antagonistic defenses that these defendants might have.

[00:26:14] Speaker 04:
Mr. Aguil's accidental disclosure and Mr. Blandi and Mr. Siddique's no inside information.

[00:26:20] Speaker 04:
So they were severed.

[00:26:23] Speaker 04:
You know, that comment was not a law of the case, and the comment here was admitted to Blanton's trial, and it was very reliable.

[00:26:31] Speaker 04:
And I just want to touch to the prejudice point, really.

[00:26:35] Speaker 04:
Even if the statement was there, there's really no prejudice, because in this case, there was another example of someone getting a tip off of ET.

[00:26:45] Speaker 04:
Tu Tran, who was one of the government's witnesses, he was actually told by Mr. Aguil to buy ET.

[00:26:51] Speaker 04:
And he did buy ET, and he profited from it.

[00:26:55] Speaker 04:
But the difference there is there was no evidence to suggest that Tootran got material non-public information because all the circumstantial evidence shows that Tootran just made a small bet on it and profited a little bit.

[00:27:10] Speaker 04:
Conversely,

[00:27:11] Speaker 04:
Belandian and Sadiq went all in after they had lost a lot of money.

[00:27:16] Speaker 04:
They went all in on highly leveraged options and profit enhanceably.

[00:27:21] Speaker 04:
So I don't think there's any prejudice on that.

[00:27:23] Speaker 04:
But I want to turn with my remaining time to the last point, the sentencing issue.

[00:27:27] Speaker 04:
I think this court has been clear that

[00:27:31] Speaker 04:
This court can infer from the record whether the guidelines were calculated properly and appropriately.

[00:27:38] Speaker 04:
And I acknowledge that the district court could have done a better job here.

[00:27:43] Speaker 04:
and explicitly announcing and calculating the guidelines.

[00:27:47] Speaker 04:
But what the district court did is he made reference to all the probation letters, and he asked the defendant if he had received him.

[00:27:55] Speaker 04:
The defense counsel said yes.

[00:27:57] Speaker 04:
And then he began to go through the recommendation letter.

[00:28:00] Speaker 04:
The recommendation letter did have a guidelines calculation.

[00:28:04] Speaker 04:
And the other documents for which that is built upon, the pre-sentence report and the addendum, those lay out the math.

[00:28:12] Speaker 04:
And there's a point here in the government's supplemental excerpts of record if you look at the addendum, the argument that they were making with respect to the loss amount, which is really without merit that they should be separate, but that argument was addressed and rejected in the PSR addendum.

[00:28:28] Speaker 04:
Did the district court ever roll on that objection well the district court was not required to in this case case law because actually just a legal objection and so if you look at the aloba case and the dough case The dough case which is cited in the briefs this court's case laws clear 32 has to rule on factual on factual disputes, but here this was a Legal dispute and frankly was a meritless legal dispute because the law was quite clear that

[00:28:54] Speaker 04:
that it is a joint activity, and so the loss amount should be combined.

[00:28:59] Speaker 04:
But I want to just jump to the third point of really, even if there was air and not expressly calculated guidelines ahead of time, the defendant really hasn't showed a reasonable probability that his sentence would be any different.

[00:29:13] Speaker 04:
The guidelines that were in the recommendation were in fact the correct guidelines.

[00:29:18] Speaker 04:
But moreover, no one was really arguing the guidelines in this case.

[00:29:24] Speaker 04:
The defense's presentation really relied on the 3553A factors and went through some length of all the recommendation.

[00:29:32] Speaker 04:
And the government didn't really argue the guidelines either.

[00:29:35] Speaker 04:
And then when the court imposed the sentence, the court itself mentioned, I'm not really looking at the length of the recommendation.

[00:29:42] Speaker 04:
I'm just looking really at the fact that it was a recommendation.

[00:29:45] Speaker 04:
So I think ordinarily, while there is, while ordinarily, why this court's case law says if there is a guideline error, that might be something to reverse and remand.

[00:29:54] Speaker 04:
This is not one of those cases, because first of all, the guidelines were correct.

[00:29:58] Speaker 04:
Defendant hasn't shown that there's a reasonable probability that his sentence would be any different All right.

[00:30:05] Speaker 02:
Thank you counsel.

[00:30:06] Speaker 02:
Thank you

[00:30:20] Speaker 01:
I first want to note that it is irrelevant what juror number six stated during voir dire because the juror then came back and informed the court that I am not sure that I can be fair here.

[00:30:36] Speaker 01:
That is not a potential bias.

[00:30:38] Speaker 01:
That is actual bias.

[00:30:39] Speaker 01:
This court has defined actual bias as the existence of a state of mind that leads to an inference that a person will not act with entire impartiality.

[00:30:48] Speaker 01:
a statement that honestly I am not sure if I can be fair falls outside of that definition and so we are dealing with actual bias here.

[00:30:57] Speaker 00:
Council can I ask you to address the Mitchell case though because there when question about her ability to be impartial the jurors juror gave ambiguous answers like I don't think so So tell me why this is different sure so in Mitchell this court found that the only time that the district court directly asked her can she be fair she unequivocally said yes, she was rehabilitated and

[00:31:21] Speaker 01:
Here we have an unrehabilitated juror who never unequivocally stated that he could be fair.

[00:31:27] Speaker 01:
He never even stated that he would try to be fair.

[00:31:30] Speaker 01:
And in Gonzales, that's what happened.

[00:31:32] Speaker 01:
The juror there stated that she would try to be fair and that was insufficient.

[00:31:37] Speaker 01:
That juror was too biased and that case was reversed.

[00:31:40] Speaker 01:
Our case is much more similar to Gonzales than Mitchell.

[00:31:46] Speaker 01:
And then with respect to the waiver,

[00:31:49] Speaker 01:
Mr. Bolandian never waived this right.

[00:31:52] Speaker 01:
He was never asked if it was if he agreed to allow this by sure to stay it was his right to waive and he did not do so and so for that reason the waiver analysis just simply does not apply here and finally to the extent that This court considers whether or not this is structural error the IRV Calderon is clear that this is structural error and

[00:32:14] Speaker 01:
The court's analysis in Knight applies in Gonzalez.

[00:32:18] Speaker 01:
This court considered a biased juror structural error, and so there's simply no reason for this court to reconsider that at this point.

[00:32:26] Speaker 01:
And unless the court has other questions, I will submit.

[00:32:30] Speaker 02:
All right.

[00:32:30] Speaker 02:
Thank you, both counsel.

[00:32:33] Speaker 02:
U.S.

[00:32:34] Speaker 02:
v. Bolandian is submitted, and this session of the court is adjourned for today.

[00:32:47] Speaker 02:
This court for this session stands adjourned.