other things that you have to confront are apparently there were a couple admonitions to the jury on that point correct and whether that was to fish and then the whole nature of the evidence whether the evidence was overwhelming or all of that and then when you get to the confrontation issue i think we want to leave some time for that i think we can we indicated we wanted you to address the retroactivity but i think also it would be important to address whether the prosecutor statements are testimonial under crockford i'm a little more in arrested in the second part of it but the so i'm a little more interested in the second part of that on the proffer part of it so if you want to spend your time that way i don't think we need to spend a lot of time on the first part of that we're familiar with the argument trial and being tried by an impartial jury as well as the confrontation in the ones those are two of the most the most significant aspect of the right of the right to trial there was one in management  your honor and that was after the cross examination experience and actually there were two occasions during the cross examination where the prosecutor went into it and then there was that in my judgment we would initially that first of all i would say that we never got to he never got to climb that issue with this degree of prejudice and what was put before this particular jury it's our jury was lost at that point but as far as the residue on the right and i also came out in the shelling then there was testimony to the fact that that could you could have residue without even shooting that thing in a weapon and as far as his confession is concerned he attempted to retract it within the fifteen minutes from when it was given and attempted to get the officers attention to do so on two different occasions and was unable to do so and he did in his testimony at trial explain his reasons for what he said in the confession and i would point out that there was a considerable amount of drug activity connected with this and one never knows what's transpiring among the parties in terms of he said that there were certain fears that he had experienced in certain reasons that he had done what he did i would and lastly point out that as far as the confession is concerned as we point out in the brief there are several aspects of his confession that are just totally illogical and don't fit in to to what took place and that's that's why i believe that there are some questions with regard to the evidence that's not it's our position that the prosecutor is is specifically putting before the jury what he statements and evidence where in the in the initial trial and greatest trial and that the prosecutor  putting that out and repeating that actually becomes the witness for the new terms of what the declarant had said in the trial and that he's actually giving testimony he's not giving an opinion he's not arguing he's he's actually giving testimony and then th case the prosecutor made reference to an undisputed fact that the somebody the other person was convicted of a crime of the same crime but where is the out of court statement where is the hearsay statement and i think the answer has to being there is not that you're referring to prosecutorial misconduct a you focus your appeal because there isn't any hearsay statement unless you can identify one i think that what was the comment by judge jo want closing he doesn't say anything about somebody else's out of court statement right i'm stink just from the standpoint when you come back on your one minute if you want to find the parts that i think i notice two parts here that first you have in fact mr drake told you a very similar story to the to consider that evidence in determining whether mr standard for with guilty and immediately caution after the objection where the prosecutor mentions the word conviction and i don't think that it's just that the cautionary statement is in any of  the pleadings that we needed to the court although it is in the record which was before the district court so i just briefly read it immediately after the prosecutors made that statement after question the court said there has been evident indicating that a person other than mr stand for was or may have been involved in the crime for which he's on trial i interrupt you now that there may be many reasons why that person is not here on trial and your job is to decide whether the people have proved the guilt of this defendant whether or not they've done that therefore you were not to discuss during deliberations and you were not to give any consideration whatsoever as to why the other person isn't being prosecuted in this trial furthermore you are not to give any consideration or discuss whether or not he had been tried or he will be prosecuted to the extent there is anything in his record to indicate news like yes yes they did it twice but the prosecutor also did it twice so if it you know that kind of compounds the error i think the prosecutor only mentioned the word conviction once during the cross examination the broader question here is whether it was reasonable for the state court to find that instruction and the overwhelming nature of the evidence against mr sander for cured any prejudice and we contend that was clearly objective a reasonable this case i actually most like the united states versus problem in cases which was mentioned in the petitioners briefing and which newton offered in that case the court actually told the jury that some other co defendants had been prosecuted and were going to be coming in front of him for sentencing but that don't consider that and the court found just as the state court did in this case that in light of the overwhelming evidence and cautionary instruction that any error was harmless court in briefing in several cases it's rather lengthy brief and if the court wants any additional written briefing on that we can certainly supply it it's very clear to us that it's not retroactive trying to impeach the the defendant maybe it could be construed and the prosecutor stating the fact of the conviction that was the only thing i could come up with we get it into the only way i could find that it would apply at all is actually an exception so we don't see that it's testimonial in the nature of the crawford was trying to get asked at all it's also not even clear that it was offered for the trial and if that's the case then it's a non hearsay purpose so proper doesn't apply at all crawford indicated in that opinion that that was that was an exception asking tennessee person st so for all those reasons i don't think for the state court to find that there was no prejudice right are there any other questions by the panel thank you it has to be what the jury heard to what the jury heard is here telling the same story you're codefendant correct and i obviously there was no no opportunity to cross examine with regard