[00:00:00] Speaker 03:
24-8080, United States v. Seminole.

[00:00:06] Speaker 04:
Counsel for repellent, if you can make your appearance and proceed, please.

[00:00:13] Speaker 01:
Good morning.

[00:00:14] Speaker 01:
May it please the court, counsel?

[00:00:16] Speaker 01:
My name is Gail Johnson, and I represent verdict Seminole in this direct appeal from his criminal convictions.

[00:00:24] Speaker 01:
I'm going to focus my comments today on the first claim, which is interrelated issues factually and legally, all touching upon the fundamental right under the Sixth Amendment to an impartial jury and a fair trial by an impartial jury.

[00:00:40] Speaker 01:
Of course, there's two aspects factually that lead up to this.

[00:00:44] Speaker 01:
The first is one juror violating repeated admonitions from the court not to discuss the case before deliberations when he raised the issue of self-defense in the jury deliberations room while the trial evidence was still being presented.

[00:00:59] Speaker 01:
The second layer then is what happens next, which is that apparently two other jurors then have an ensuing conversation

[00:01:09] Speaker 01:
with an unknown number of individuals at the clerk's office.

[00:01:12] Speaker 01:
We don't know who those individuals were, we don't know how many, and we don't know what the content of that conversation was because the trial court failed to hold a Remmer hearing.

[00:01:24] Speaker 04:
We do know that they worked in the clerk's office, right?

[00:01:27] Speaker 01:
I think that's a fair inference from the record.

[00:01:29] Speaker 04:
Okay, and the court, as in the district judge, instructed the jurors that if there were any concerns that they should be brought to the attention of the court.

[00:01:43] Speaker 04:
How in the world are jurors going to do that but not contact some court official to let that court official know that there was a concern?

[00:01:55] Speaker 04:
I mean, what other mechanism would there be?

[00:01:57] Speaker 04:
And how could one infer some misconduct from that?

[00:02:00] Speaker 04:
Two questions.

[00:02:02] Speaker 04:
Go ahead and answer that.

[00:02:04] Speaker 01:
Yes, Your Honor.

[00:02:05] Speaker 01:
The other mechanism was the mechanism that the district court instructed the jurors to use, which was to submit a signed note if they needed to communicate with the court.

[00:02:14] Speaker 04:
OK.

[00:02:15] Speaker 04:
And let's assume there was a deviation from this stated mechanism.

[00:02:18] Speaker 04:
What could one infer as it relates to impropriety in that when the jurors spoke to a court official whose responsibility

[00:02:29] Speaker 04:
related to the district court judge.

[00:02:31] Speaker 04:
They didn't speak to a third party.

[00:02:33] Speaker 04:
They spoke to a court official.

[00:02:36] Speaker 01:
Well, Your Honor, I think it's not the defendant's burden to show impropriety when that issue here is the lack of process in granting a remer hearing.

[00:02:44] Speaker 04:
when there may be prejudice from ex parte contact between... Well, you use the word may be prejudice, and that leads to the question, what does it take to trigger a rimmer hearing?

[00:02:56] Speaker 04:
I mean, if the court can, on its face, see that there was no basis for prejudice as a matter of law, why would it need to conduct a rimmer hearing to pronounce again that there was no prejudice as a matter of law?

[00:03:11] Speaker 04:
I mean, it would seem that there would need to be some basis to believe

[00:03:14] Speaker 04:
Even if you assume, and I think this is predicated on the notion of hypothetically X, Y, and Z happen, even if those things happen, as a matter of law, they were not prejudicial, then why would the court need to conduct a Remmer hearing to validate that fact?

[00:03:31] Speaker 01:
Because, Your Honor, we don't actually know what happened, nor did the district court, because the district court did not identify the individuals in the clerk's office and did not interview any of them.

[00:03:41] Speaker 01:
It did not interview either of the two jurors who went to the clerk's office and did not interview the original juror who committed the misconduct.

[00:03:49] Speaker 01:
None of those interviewed.

[00:03:50] Speaker 01:
We have a record here where there was no inquiry whatsoever.

[00:03:55] Speaker 01:
So to say that I think it's putting the cart before the horse in that situation to put a burden on the defendant to demonstrate prejudice.

[00:04:03] Speaker 01:
That's the whole point of a Remmer hearing is for the defendant to have the opportunity to explore potential prejudice.

[00:04:09] Speaker 02:
Well, counsel, can I ask about what I think is your probably bigger problem, which is after the district judge made a recitation for the record as to what was said in general terms from the employees of the clerk's office, he asked trial defense counsel and the prosecutor, any questions or concerns?

[00:04:28] Speaker 02:
And they said, no judge, good to go here.

[00:04:31] Speaker 02:
So you're saying, well, we don't have the burden to show prejudice, but this is on plain air.

[00:04:36] Speaker 02:
have we ever had a case where we have found plain error for the failure to hold?

[00:04:41] Speaker 02:
I remember hearing.

[00:04:43] Speaker 01:
Your Honor, I'm not aware of such a case, but I think given for that aspect of the claim regarding the ex parte contact that happened at the clerk's office, given that the remedy that is sought is an evidentiary hearing as opposed to vacating the convictions for that aspect of the claim, I think on plain error review, it is reasonable to say that

[00:05:04] Speaker 01:
we need the process here.

[00:05:06] Speaker 01:
Otherwise, any time a defense counsel forfeits, but through negligence, asking for a Rema hearing, literally we would have these records where the worst possible jury contamination could have happened, but we're not going to know about it.

[00:05:21] Speaker 01:
That can't be the law.

[00:05:22] Speaker 02:
But we do have cases, McVeigh comes to mind, where we say hearing doesn't have to be held if it would not be helpful or useful.

[00:05:29] Speaker 02:
And so here,

[00:05:30] Speaker 02:
Again, we have a record.

[00:05:32] Speaker 02:
The district judge did make a record as to the communications and just laid it out there for counsel to raise concerns.

[00:05:42] Speaker 02:
I mean, it was kind of an obvious time for trial defense counsel maybe to step in.

[00:05:46] Speaker 02:
So I hear what you're saying about the process and not having a record, so we don't know what we don't know.

[00:05:54] Speaker 02:
But on the other hand, a plain error, as you know, is a steep hill to climb.

[00:05:58] Speaker 02:
And so I guess I'm asking,

[00:06:01] Speaker 02:
How can we reverse just by saying, well, it was air not to hold a hearing, and that may have been plain.

[00:06:06] Speaker 02:
But once we get to prong three, I think it becomes a little more difficult.

[00:06:10] Speaker 02:
Can you address the prejudice aspect here?

[00:06:13] Speaker 01:
Yes, the record that the district court made simply highlighted the lack of knowledge we have.

[00:06:20] Speaker 01:
For example, the plural term those is used about the original jury misconduct.

[00:06:25] Speaker 01:
So we know for sure, based on the record the district court made, that one of the topics discussed in the jury deliberation room before the trial was head-ended

[00:06:33] Speaker 01:
One of those topics was self-defense, which obviously goes to the core of this case.

[00:06:37] Speaker 01:
We don't know how many other topics there were.

[00:06:40] Speaker 01:
We don't know what the other topics were.

[00:06:43] Speaker 01:
To allow this conviction to stand without at least giving Mr. Seminole some process, a remer hearing on remand, and again, I think the plain error standard

[00:06:53] Speaker 01:
should be applied differently when we're talking about a remedy of a remand for an evidentiary hearing as opposed to vacating the conviction.

[00:06:58] Speaker 01:
That's a different ask.

[00:07:00] Speaker 04:
Well, I mean, what's the foundation for that?

[00:07:02] Speaker 04:
I mean, I don't know any case where we've calibrated the plain error standard that way.

[00:07:07] Speaker 04:
And in fact, it would seem to me that when we're talking about an evidentiary hearing,

[00:07:11] Speaker 04:
going to the point we don't know what we don't know.

[00:07:13] Speaker 04:
Well, whose fault is it that we don't know what we don't know?

[00:07:16] Speaker 04:
I mean, it's defense counsel for not raising the objection.

[00:07:19] Speaker 04:
By not raising the objection, we're left in this place where there's a vacuum.

[00:07:25] Speaker 04:
And that vacuum

[00:07:27] Speaker 04:
And variably, he's got to cut against the defendant because the defendant didn't raise the objection.

[00:07:32] Speaker 04:
I mean, we can't, you know, so what basis will we have?

[00:07:35] Speaker 04:
Because what we're talking about is reversal.

[00:07:38] Speaker 04:
We're saying there was a prejudicial, clear and obvious error here.

[00:07:42] Speaker 03:
What basis do we have to make such a statement when there is nothing to suggest that there's been harm?

[00:07:50] Speaker 01:
So Your Honor, my position is on the Remer claim.

[00:07:53] Speaker 01:
The basis for reversing is it was clear and obvious error not to grant a Remer hearing.

[00:07:58] Speaker 01:
Of course, yes, defense counsel is at fault.

[00:08:01] Speaker 01:
There is no doubt about that.

[00:08:02] Speaker 01:
That's why I raised this on plain error review.

[00:08:05] Speaker 01:
But given that the outcome of that Remer hearing is not automatically vacation of the conviction, I think that is a different inquiry for this court.

[00:08:13] Speaker 04:
Let's talk about the raising of the issue of self-defense to begin with.

[00:08:20] Speaker 04:
Yes, that violated the court's instructions, but what about that suggests that there's some implicit bias against this defendant?

[00:08:27] Speaker 04:
I mean, the fact that self-defense was raised, it could have been raised in the sense of, boy, he had a good self-defense argument, didn't he?

[00:08:34] Speaker 04:
I mean, what about the categorical statement of self-defense?

[00:08:38] Speaker 04:
What about that suggests that there was some implicit bias against the defendant?

[00:08:44] Speaker 01:
Your Honor, I think because it evidences irrefutably that that juror violated nine separate admonitions from the district court.

[00:08:54] Speaker 01:
That's irrefutable evidence that that juror was either incapable or unwilling to follow the court's instructions.

[00:09:01] Speaker 01:
It doesn't get more basic than that in terms of implicating the defendant's six-member right to a fair trial by an impartial jury.

[00:09:07] Speaker 04:
Where's the through line between failure to follow instructions and implicit bias?

[00:09:12] Speaker 04:
Because what we're talking about is whether there was bias by the juror against this particular defendant.

[00:09:18] Speaker 04:
And the fact that there was a difficulty of the juror in following instructions, how does that correlate to bias?

[00:09:26] Speaker 01:
Well, Your Honor, I think it's more than a difficulty.

[00:09:29] Speaker 01:
I think, again, unwillingness or inability.

[00:09:31] Speaker 01:
And either of those just mean we can't trust that juror to follow instructions.

[00:09:34] Speaker 01:
But again, it's not just self-defense that was discussed in the jury room.

[00:09:38] Speaker 01:
Other plural topics were discussed.

[00:09:40] Speaker 01:
We don't even know what they are because no hearing was held.

[00:09:44] Speaker 02:
Why can't we conclude that a hearing was held?

[00:09:47] Speaker 02:
I mean, the judge on the record made a recitation and teed it up, and then the parties did not request the taking of evidence.

[00:09:54] Speaker 02:
Why wasn't the Rimmer requirement complied with?

[00:09:57] Speaker 01:
There's zero evidence in the record that a Rimmer hearing was held.

[00:10:01] Speaker 02:
Well, but again, when we say a hearing, you know, the parties are present, the defendant was present,

[00:10:09] Speaker 02:
A record was made as to the issue, and then the parties didn't want to present evidence.

[00:10:14] Speaker 02:
So that was their obligation.

[00:10:15] Speaker 02:
So why can't we look at the record here and say, well, there was a rumor hearing.

[00:10:19] Speaker 02:
It was pretty short and cursory, but there was a hearing that was held.

[00:10:25] Speaker 01:
Generally, the way these hearings are held in the case law is that the district court is responsible for starting an inquiry.

[00:10:32] Speaker 01:
It's not that the parties are calling in witnesses.

[00:10:34] Speaker 01:
And let me also be clear.

[00:10:35] Speaker 01:
We, of course, have the implication of the defendant's

[00:10:38] Speaker 01:
Right to be present the defendant was not allowed to be the defendant and his counsel were not allowed to be present when the conversation happened in the clerk's office and Defendant and his counsel were not allowed to be present when the conversation happened between the clerk's office and the court And I see my time running down I Would also just quickly like to turn to the motion for mistrial regarding the out court room outpost which is a preserved issue Very clearly in the district court acknowledged that and again

[00:11:08] Speaker 01:
That outburst went to the core issue in this case of self-defense.

[00:11:12] Speaker 01:
I do want to emphasize factually for the court and highlight a couple pieces of evidence.

[00:11:19] Speaker 01:
During the testimony of Vanna Eagle, the 911 call was introduced.

[00:11:25] Speaker 01:
That's government's Exhibit 1-2.

[00:11:27] Speaker 01:
It shows up in the conventionally submitted materials with a different number on them.

[00:11:32] Speaker 01:
I'm just going to give the court that as well, which is Gov.

[00:11:34] Speaker 01:
12, underline 395.

[00:11:36] Speaker 01:
I believe it's the only audio file in there.

[00:11:41] Speaker 01:
It's clear in there within the first 30 seconds that Ms.

[00:11:43] Speaker 01:
Eagle tells the 911 operator, quote, they are shooting at each other here at this house, unquote.

[00:11:51] Speaker 01:
And then another minute or so passes, and then she talks about other shots happening, and then clearly there's a lot of wailing, and that's when the decedent is shot.

[00:12:02] Speaker 01:
So she also knows

[00:12:04] Speaker 01:
what a misfire sounds like.

[00:12:05] Speaker 01:
So the decedent here had tried to shoot my client, had failed.

[00:12:09] Speaker 01:
She knows what a misfire sounds like.

[00:12:10] Speaker 01:
When she says they are shooting at each other, she must be referring to Mr. Vance.

[00:12:14] Speaker 01:
And that absolutely undermines the government's theory that Mr. Vance, or sorry, Vance Addison, Mr. Addison fired last.

[00:12:22] Speaker 01:
Of course, we have a cumulative error claim too, because we have this jury instruction error on the initial aggressor problem, which this outburst goes directly to.

[00:12:35] Speaker 01:
So if the court doesn't have any questions on that I'll reserve my remaining couple minutes for rebuttal.

[00:12:39] Speaker 01:
Thank you.

[00:12:47] Speaker 00:
Good morning and may it please the court, counsel.

[00:12:51] Speaker 00:
My name is Christine Martins and I represent the United States.

[00:12:54] Speaker 00:
Well there's five issues this morning for the court's consideration.

[00:12:57] Speaker 00:
They relate really to three trial level

[00:13:00] Speaker 00:
alleged errors, and the only preserved error is that outburst in the courtroom that counsel was just talking about.

[00:13:07] Speaker 00:
So I think I'd like to go there.

[00:13:10] Speaker 04:
What is the test for when a Rimmer hearing is required, Ms.

[00:13:14] Speaker 04:
Martin?

[00:13:15] Speaker 04:
I mean, what circumstance triggers the obligation to conduct a hearing?

[00:13:20] Speaker 00:
Certainly, Your Honor.

[00:13:21] Speaker 00:
So a Rimmer hearing is really only necessitated when you have exterior contact with the jury.

[00:13:28] Speaker 00:
This court and I believe

[00:13:31] Speaker 00:
All the courts that I've looked at break these jury misconduct and bias issues into two pieces, external things to the jury, outside influences, and intra-jury conduct.

[00:13:42] Speaker 00:
So we're really only in the zone of a REMR hearing when we have those external contacts.

[00:13:47] Speaker 00:
And REMR itself had to do with the offer of money in exchange for a juror member to deliver a certain verdict, which is certainly the kind of thing where a hearing should be held.

[00:13:57] Speaker 00:
On the other hand, we have those intrajury function questions.

[00:14:01] Speaker 00:
And we talked a little bit this morning already about McVeigh.

[00:14:04] Speaker 00:
And I think that that's a good case to illustrate this difference.

[00:14:07] Speaker 00:
So Timothy McVeigh bombed the Oklahoma City building, killed 168 people.

[00:14:13] Speaker 00:
And among those was the daycare, I think, that was on the first floor.

[00:14:16] Speaker 00:
It got enormous publicity before trial and during trial.

[00:14:21] Speaker 00:
That defendants in that environment

[00:14:25] Speaker 00:
moved for a change of venue, and it was in that context that someone reported to the clerk's office that one juror said something along the lines of, gee, I hope I'm not the holdout.

[00:14:35] Speaker 00:
And another juror answers, well, we all know what the verdict should be.

[00:14:39] Speaker 00:
Now, in that case, the district court chose not to conduct a hearing where those jurors were pulled into the courtroom and interviewed, but instead made that recitation on the record and denied the motion for mistrial based on it.

[00:14:53] Speaker 00:
Now, this court in that case explained that the hearing was not required.

[00:14:57] Speaker 00:
It was up to the district court's discretion.

[00:14:59] Speaker 00:
And that discretion should be guided by the context and the credibility of the allegation and the seriousness of the allegation.

[00:15:07] Speaker 00:
And ultimately, in that case, this court said that the comments from the juror were actually ambiguous and didn't slice in terms of showing explicit bias against one party or the other.

[00:15:20] Speaker 00:
So certainly when we have this framework, here we have an intra-jury issue.

[00:15:25] Speaker 00:
There's no evidence of any kind of external contact with this jury.

[00:15:29] Speaker 04:
So we don't even get... Well, that's not what defendant's position is.

[00:15:32] Speaker 04:
I spoke about the clerk's office being essentially an extension of the court.

[00:15:37] Speaker 04:
At least I didn't hear an acclamation to that point.

[00:15:42] Speaker 04:
So why isn't this an external contact?

[00:15:46] Speaker 00:
This is not an external contact because we don't have anything of substance happening with the clerk's office.

[00:15:52] Speaker 00:
How do we know that?

[00:15:53] Speaker 00:
Because that's what the record reflects that we have is that this is just a one-way ratchet that the clerk received the report and funneled it along to the district court without any evidence in this record.

[00:16:05] Speaker 00:
of any other contact.

[00:16:07] Speaker 04:
Well, you heard the defense lawyer saying that the reason that we don't know whether anything else happened is because there wasn't a hearing.

[00:16:16] Speaker 04:
In other words, it becomes a cycle.

[00:16:17] Speaker 04:
I mean, we don't know it's a one-way ratchet.

[00:16:21] Speaker 04:
We don't know what they talked about in the clerk's office because the court chose not to have a hearing.

[00:16:25] Speaker 04:
So I mean, why is the logic of that persuasive?

[00:16:32] Speaker 00:
I think that there are a couple of different reasons, Your Honor.

[00:16:35] Speaker 00:
So first and foremost, when the district court went on the record with the parties and defendant personally present, recited what happened, and asked the parties what happened, and if they had questions or concerns about the proposed course of conduct, defense counsel said no.

[00:16:51] Speaker 00:
So to the extent that there is any issue with the record, we have explicitly declined to below develop that record.

[00:16:59] Speaker 00:
And that's why the government asserts that this claim is altogether waived.

[00:17:02] Speaker 00:
Defendant was specifically confronted with this problem and declined to take any further action.

[00:17:07] Speaker 00:
And on appeal, he wants further action.

[00:17:09] Speaker 00:
The position is directly opposite.

[00:17:13] Speaker 00:
And I think that the lack of record here cuts against any claim of prejudice.

[00:17:18] Speaker 00:
And it shows that the record, what I would submit, is not ambiguous.

[00:17:24] Speaker 00:
But it is certainly in the sense that the court in McVeigh said that

[00:17:29] Speaker 00:
We can't divine from this record whether it cuts one way or another.

[00:17:32] Speaker 00:
And we shouldn't infer things that actually aren't in the record.

[00:17:35] Speaker 00:
I'll agree with Mr. Seminole that there are cases where court staff can be those external influences.

[00:17:43] Speaker 00:
But we're talking about things like a bailiff making a comment to a juror about what they think the outcome of the trial should be.

[00:17:49] Speaker 00:
Or the recent case, I think it was Demer, that this court decided where an advertisement had been put up in the jury room.

[00:17:57] Speaker 00:
Derman, thank you.

[00:17:59] Speaker 00:
I misspoke.

[00:18:00] Speaker 00:
But certainly, Your Honor, you're familiar with the case.

[00:18:02] Speaker 00:
And those are external information.

[00:18:05] Speaker 00:
Actually, the court said in that case that the advertisement wasn't external, because the investigation showed that it was a juror member who had taken it out of a magazine.

[00:18:15] Speaker 00:
So it was really an internal jury thing that had happened.

[00:18:18] Speaker 00:
But the concern was that it could be external because it was outside materials that were in that jury room along with some comments.

[00:18:26] Speaker 04:
You spoke about McVeigh.

[00:18:29] Speaker 04:
In looking at what the district court did there, did it draw or in any of these cases, do the district courts specifically draw the distinction between external and internal?

[00:18:41] Speaker 04:
In other words, when McVeigh

[00:18:43] Speaker 04:
When Judge Maitch handled it the way he did, did he predicate it on the notion that it was an internal contact?

[00:18:50] Speaker 00:
He didn't explain that logic on the record, but that distinction exists in the case law.

[00:18:56] Speaker 00:
And so I don't think there's any reason to think that the district court didn't have that distinction in mind in suggesting the course of action to the parties.

[00:19:04] Speaker 02:
Can I ask, going back to McBey though, as I recall that opinion,

[00:19:09] Speaker 02:
When discussing the need for a hearing, the opinion says, on, quote, a rare occasion, a hearing need not be held.

[00:19:15] Speaker 02:
That tells me that the starting point is that there will be a hearing.

[00:19:19] Speaker 02:
And it's only on those rare occasions where it may not be useful or necessary where you don't have to have a hearing.

[00:19:24] Speaker 02:
And then, of course, we have other cases like Schism, where there was communication directly with the judge between the juror.

[00:19:31] Speaker 02:
And I think it was either the courtroom deputy or the bailiff who brought concern to the court.

[00:19:36] Speaker 02:
And so I'm not sure this distinction matters as much in terms of whether it's communication outside or intra-court communication within the jury room.

[00:19:47] Speaker 02:
But I guess, can you address here, I hear Mr. Seminal's argument to be that once the district judge alerted the parties to this, sure, in an ideal world, trial defense counsel would have said we need to bring in the jurors individually and ask them about the communications.

[00:20:05] Speaker 02:
That didn't happen here, but the court has its own independent responsibility to make that record.

[00:20:11] Speaker 02:
And it didn't do that here.

[00:20:12] Speaker 02:
I mean, it does it minimally.

[00:20:14] Speaker 02:
And so, and that gets at what are core constitutional rights of the defendant.

[00:20:19] Speaker 02:
So can you address, I know that was, this is a long recitation, but I'm getting to the prejudice element here on Plain Air, prong three.

[00:20:28] Speaker 02:
How do we think about that in this context?

[00:20:30] Speaker 00:
I think that this court should think about it both in terms of what the record looks like and what the record actually says.

[00:20:37] Speaker 00:
And what the record reflects happened is that someone made a comment about self-defense and the jury immediately shut it down, which is following the instructions given by the court in terms of not to discuss the case with anyone, including amongst themselves, until it's formally submitted with the charge for deliberations.

[00:20:56] Speaker 00:
From the record, I don't think the court should infer anything but what the record actually says.

[00:21:01] Speaker 00:
And it's just a comment.

[00:21:03] Speaker 00:
It's just as likely that someone walked out of that courtroom into the jury room and said, whoa, self-defense is going to really be an issue when we deliberate, or something like that that's totally innocuous that got shut down, versus maybe expressing some sort of initial impressions of what the defendant's self-defense claim is.

[00:21:23] Speaker 00:
The record doesn't tell us what that is.

[00:21:26] Speaker 00:
But it does reflect that the jury immediately shut that conversation down.

[00:21:30] Speaker 00:
And then they followed their obligation to report it.

[00:21:34] Speaker 00:
And I disagree with Mr. Seminole's read of the record about that as well.

[00:21:38] Speaker 00:
What the record here reflects is that this jury panel was sworn in, introduced to the clerk, directed to go to the clerk to communicate issues to the court, and orally instructed to do so through a note.

[00:21:49] Speaker 00:
Shortly after that, the district court read the written instructions, talking about how you have the written instructions in front of you.

[00:21:57] Speaker 00:
Follow along.

[00:21:58] Speaker 00:
If there's any difference between oral instructions of the court and the written instructions, the written instructions carry the day.

[00:22:05] Speaker 00:
So when we go to the written instructions, what we find is that first charge, jury instruction number five, talks about the importance of waiting to deliberate until the case has been formally submitted,

[00:22:17] Speaker 00:
importance of ignoring all outside information and then closes with, and if anything happens, contact the court without specifying whether that should be in writing or verbally.

[00:22:28] Speaker 00:
Now, a couple of days go by before this happens, because this is, I believe, the close of the third day of trial, after Mr. Seminole testifies in his own defense as the 18th witness presented to this jury, with self-defense clearly a central issue in this trial the whole way,

[00:22:44] Speaker 00:
And I think it's perfectly reasonable at that point for that jury to go back to its written instructions and say, I think we're obligated to report to the court.

[00:22:51] Speaker 00:
Let's go talk to the clerk's office.

[00:22:54] Speaker 00:
And so again, I think that this record really shows that this jury was doing its very best to honor those instructions to the letter.

[00:23:01] Speaker 00:
And there's no reason to think that this jury would have done otherwise based on the record we have.

[00:23:06] Speaker 00:
And so when we're thinking about that prejudice to really bring it back around to the heart of the question,

[00:23:12] Speaker 00:
There's nothing about the face of the record that reflects anything that would lead to the impression of prejudice against Mr. Seminole, that his rights were somehow violated, that this jury was somehow anything but impartial.

[00:23:24] Speaker 00:
And the court, in trying to figure out what to do, this court explained in McVeigh that there's a careful balancing act in choosing that course of conduct, whether or not to hold a hearing, that the court must also weigh the potential impacts of the hearing itself.

[00:23:40] Speaker 00:
Because remember, you're going to mid-trial before the case is submitted, pull those jurors in, probably at least three of them, if not more, and talk to them about what's been going on and what was said, subjecting them to a questioning at least directed by the court, if not also by the parties.

[00:23:57] Speaker 00:
So there's certainly a chance to leave impressions about the evidence and the proceedings at trial that might be adverse to either party, so that carries its own danger, stopping the proceedings.

[00:24:10] Speaker 00:
your honors, why the district court behaved so reasonably here in reciting what happened and asking the parties if anything else needed to be done.

[00:24:19] Speaker 00:
And having declared that nothing further needed to be done below, Mr. Seminole can hardly now say more should have been done.

[00:24:29] Speaker 00:
If there are no further questions as to the jury misconduct question, I guess I would add one more thing on the communications with the clerk's office and that ratchet with the court.

[00:24:39] Speaker 00:
I was unable to find any case where that communication, that funneling of information was singled out.

[00:24:46] Speaker 00:
And what you do find in the case law, McVeigh, since we've been talking about that case, is the case is just recite, it was reported to the clerk, and then jump into the merits of the thing.

[00:24:57] Speaker 00:
So I think that this is also the normal mechanism that a jury would use to convey such a message.

[00:25:04] Speaker 00:
And as long as there's not sort of this implication that, say, the clerk's office

[00:25:09] Speaker 00:
told somebody something about what the verdict should be, that that's just the normal channel through which this information flows and nothing should be inferred from that.

[00:25:19] Speaker 00:
So with that, if there are no further questions about that issue, Your Honors, I would touch on the motion for mistrial after the courtroom outbursts as that's the only preserved issue.

[00:25:32] Speaker 00:
So here, the district court immediately stopped the proceedings, immediately

[00:25:38] Speaker 00:
told the jury to disregard the outburst, excuse them from the courtroom, dealt with the motion for mistrial, citing this court's case law, and then when the court brought the jury panel back in, gave a fairly extensive instruction on the importance of disregarding that courtroom outburst.

[00:25:55] Speaker 00:
And the general rule when there is information in front of a jury that is improper is that that curative instruction is able to remedy

[00:26:06] Speaker 00:
any possible prejudice.

[00:26:08] Speaker 00:
And there's no reason to think that that's not the case here.

[00:26:11] Speaker 00:
So specifically below, the district court relied on the case United States versus Encinillas.

[00:26:17] Speaker 00:
And while it's an unpublished opinion, it dealt directly with a courtroom outburst.

[00:26:22] Speaker 00:
In that case, which was a drug and gun trial, there was evidence that had been excluded before trial about a murder that had happened sort of in the mix of the events that were the subject of the trial.

[00:26:33] Speaker 00:
And during the trial,

[00:26:35] Speaker 00:
even despite the court's exclusionary order, reference had been made to the killing, and the decedent's mother from the gallery called the defendant a murderer.

[00:26:47] Speaker 00:
So in that case, this court said that the curative instruction was good enough.

[00:26:53] Speaker 00:
And then we would also point the court to parole, where we weigh the prejudicial impact of that improper information

[00:27:00] Speaker 00:
in light of the entire case.

[00:27:02] Speaker 00:
And central to the determination that improper information was not prejudicial there was the idea that the improper information hadn't occurred for the first time at that motion for mistrial.

[00:27:14] Speaker 00:
And here, Your Honors, as I mentioned before, Mr. Seminole was witness number 18 to testify in his own defense.

[00:27:21] Speaker 00:
I see I'm out of time.

[00:27:22] Speaker 00:
May I conclude my thought?

[00:27:23] Speaker 00:
Finish your thought.

[00:27:24] Speaker 00:
To testify in his own defense.

[00:27:26] Speaker 00:
And this was, while a central issue in the trial, it would have been no surprise to the jury

[00:27:30] Speaker 00:
That it would be hotly contested and there's again no reason to think that this jury would not have followed those instructions With that your honor we ask that the court affirms safe for the limited remand on the double jeopardy issue.

[00:27:42] Speaker 04:
Thank you counsel.

[00:27:43] Speaker 01:
Thank you Thank you on the remer issue

[00:27:56] Speaker 01:
I just want to quickly just remind the court how McVeigh is so distinguishable.

[00:28:00] Speaker 01:
There it was clear that the court knew the content of the conversations.

[00:28:04] Speaker 01:
And there was a basis for the court to infer that the juror in question was following the court's instructions.

[00:28:12] Speaker 01:
In terms of the prejudice issue, I think I should have done a better job in my initial argument of saying that under Remmer, as modified by this court,

[00:28:20] Speaker 01:
that presumption of prejudice is a qualified presumption, and the defendant meets it simply by showing that the conversation in the jury room was about the case.

[00:28:31] Speaker 01:
That's not reasonably disputed here.

[00:28:34] Speaker 01:
So once that presumption of prejudice arises, a hearing needs to be held.

[00:28:40] Speaker 01:
In terms of this court's concerns about, well, gosh, can't we infer that,

[00:28:46] Speaker 01:
Because these were public officials, there's no impropriety.

[00:28:49] Speaker 01:
I just direct the court's attention to the US Supreme Court's case in Parker and this court's decisions in Little and Rubenstein.

[00:28:56] Speaker 01:
Those were addressed in Mr. Seminole's opening brief, pages 23, 24, and his reply brief, pages 11 and 12, which all involve public servants and stand for the principle, I think, or the principle can arise from those cases, that just because there's public servants involved in the ex parte contact with jurors doesn't mean no impropriety could occur.

[00:29:16] Speaker 01:
And finally, if I could briefly address the insinuous case on the motion for mistrial issue.

[00:29:22] Speaker 01:
To be clear, insinuous was a plain error review of that issue in that case because no motion for mistrial was made there.

[00:29:31] Speaker 01:
Here, of course, the issue was thoroughly preserved.

[00:29:37] Speaker 01:
And finally with my remaining 22 seconds I don't usually raise cumulative error issues in this court But I have in this case because it's interesting that all of an important I think that all of the issues touch on the core of

[00:29:50] Speaker 01:
issue of self-defense and whether or not Mr. Seminole was going to be convicted or acquitted.

[00:29:54] Speaker 01:
And so I think the court could also look again at the jury instruction issues and accumulate the prejudice when it does its plain error analysis.

[00:30:01] Speaker 01:
Thank you.

[00:30:01] Speaker 01:
We ask the court to reverse.

[00:30:03] Speaker 01:
And I know again the court, the government has conceded one of the convictions.

[00:30:08] Speaker 01:
Thank you.

[00:30:11] Speaker 04:
Case is submitted.

[00:30:13] Speaker 04:
Thank you, counsel.