trial and i believe that the sixth amendment rights of the appellant in this case mr and because paul do you require that he not so much myself but that he had been advised that he had the well you are i don't have a case but i believe that that in that case the cases seem to indicate that if an attorney gives consent then that sufficient but in this case there's no consent at all you know it could we say that there is imply consent from the failure to object and go in a proceeding something that i believe a significant in this regard in answering your question i argued in my case that this was plain error however i or i in retrospect because i don't believe i can show prejudice in that case this court sat on a on an appeal with two article three judges and an article four drugs i think from the some island somewhere was article four judge who had the right to court of appeals level that it was not proper for for the court to sit with two article three in an article for its that's correct and there was a dissent i've quite familiar with i live not being enough judges on the bench you could consent to you could have consented to this procedure whereas as i understood it in in that case that couldn't really been a consent know the way i read the caveat at that that they could have consented are yes i read the case if they could have consented i mean we're saying you could consent to a non article three judge sitting on or me i just i suppose that would be the case but i don't think the appellant needs to bear the burden of what i did or didn't do the issue i think that happens all the time well i understand but this is such a crucial  the magistrate must advise come on and help in the presence of the defendant and he's got a right to this and then i get to say look here's what the difference is you know if you don't want to if you don't care then we'll go ahead with the ma had studied if i was prepared when they when we came into the court room to know that this was going to happen but you weren't you were prepared so if it that point the judge had asked you whether or not you had an objection to the magistrate judge conducting divide here and you remain silent what would the effect have been if the the point being here is that i would have had the opportunity to discuss it with the defendant because the fence got here that's the point that's not answering the question the question from just to radio was if at the point you were in the proceedings the magistra that didn't happen and we walked in the mr causey and i worked walk in court having no idea that this was going to happen and as i said when i commenced my argument if i had twenty six thirty six firmly embedded in my mind or the head statute in front of me i did been quicker on my feet quite frankly i would have thought well geez i don't know who judge can do this or not all right counsel you've exceeded your time we understand your position thank  we'll hear from the government and foremost i would agree with the court that plainer applies in this case the case that defense counsel cited in this twenty j order in when case that case and reading that case it's in permissible for the parties even if the parties had stipulated or or consented to the panel that presided over that case there being two article three judges and an article four judge it still would have been in permissible case was if the magistrate judge had asked the defendant for his consent sarkozy issue that the record in the record there's no indication that the defendant would not have consented so clearly there is there is no error here honor this is this case and this issue relates to the supreme court case have been solace that left this question unanswered whether or not prejudice can be or excuse me whether or not error whether or not a defendant in a definitive failure to object during jury selection can constitute implied consent in this issue has this specific issue has not been addressed by that you don't have to  don't have to argue that because he already said he cannot establish prejudice as a direct your honor and he cannot and and let me add this and i'll take any questions that the court might have in this would be that the circumstances in this case are somewhat similar to what the supreme court dealt with in rule and that the parties here fully participated in the jury selection process that was that was overseen by the magistrate judge without any objections now that the result is not what the defense expected or desired they now challenge the authority of the jurors did mr judge and overseen that that proceeding and as a supreme court held and roll forward to allowed a defendant to await the outcome and then when the outcome isn't what it expected to challenge the jurisdiction of the magistrate judge and sitting and that person that in that setting would frustrate the judicial efficiency and it's our position that if the conviction in the case such as this were reverse it i think the bottom line issue in this case is whether or not my silence without the magistrate having informed the defendant that he had a right to an article three judge from me and implied consent and connor this court the courts are in fact the final arbiters of points how sixth amendment rights should be protected the fact that congress has failed to specify significant what is important is what the courts decide is significant if congress had to decide each and every portion of the sixth amendment or fourth amendment or  case just argued is that made it for decision by the court the next case on counter for argument is united states versus gum ask the terrorists