both by an immediate curator instruction and by multiple other relevant instructions and we respectfully submit that it did but for the courts after the fact the mistake of law in reframing this into issue issue district court record formerly got i think and i find no sign that the government made that argument below uy guj he did leave that there was no constitutional cause n or do we take that piece of your argument on plane or review i believe that i can first of all i think it's noteworthy that before we ever argue anything to the just for one the district court remark it was a brief one and the court's curative instruction which you were characterized as forceful was adequate to address it that's the backdrop this came up then again months after trial in the context of the neutrons briefing where it was addressed in the summer cursory fashion by the defense itself against that and our response to that and that's what i would want the court to that  that it was a question it was unanswered and that it was effectively addressed both i and immediate curative instruction and by multiple other relevant instructions including specifically the repeated instruction that the questions of lawyers are not evidence and that any assertions of fact contained within those questions should not be considered as evidence by the jury in the context of a sustained jackson and we are that the jury may be presumed to have followed those instructions and we argued that in that context there was no debate the trial had not been well had not been poisoned and that the that may be so always a matter of more but that's not what you told district in so far as i read the arguments that were made at the motion from the trial stage if you would made precisely that adamant that this  surprise about the government's position to the district court we believe the government's position was clear that there could be no confrontation clause violation where evidence was not you could use as was the case here  responded to it and there was no actually not even factually not addressed oral argument and the district court thereafter revisited its earlier decision but it was not on the basis of some new argument that  in the government's perspective your contention is that you do not understand the issue of whether a complication cause a violation could occur when the evidence had not been admitted to be a live issue at the time  that there was no issue here that was not effectively addressed by its period of instruction because this was a brief question as opposed to the introduction of it that was the thrust of our argument which we believe was clear to the court but let me just respond out of time so we're going to have to take this issue to the extent you have been able to address it this morning on your briefs which were pretty thorough on the point i believe and you have rick served some time but i asked one question though on this all right thank you would you please mute your video and audio in mr kendall you should  contradicts what the government just represented to this panel and what i said to the district court judge was i cited him to the government's brief and pointed out that the government pretty much is that they won't predate crawford heart of the thesis of the prosecution's argument here and one that that frankly seems to have some legs is that the guilt was admitted it was but the jury and they knew it and whether we say testimonial means it has to be family or it's confirmed by the trial my client the elements in dispute in the case and then the final clip confirms it and if you will what we have raised with the trout when he gave his instruction we've said you're giving the wrong instruction given your instruction that's appropriate that was communicated to the jury by the state seems to me mr kendall that another way to put this might be that you're arguing that the government engaged in bolstering by introducing try tempting to introduce the fact of the guilty plea but which is as just a way that i've been thinking about it but be that as it may i haven't a question about that beyond the  harmfulness if that was testimony to harmfulness of the didn't sin and that is to say so what if he pled guilty the defense was that she didn't have anything to do with him there confrontation clause is implicated or there was some question of whether the competition can be implicated or evidence is not introduced and he suggests that no case is ever held what you're suggesting should be the lawyer the fact is as we pointed out our multiple circuits have repeatedly health that a prosecutor's comment does not rise to the level of a confrontation clause violation because the confrontation clause is not implicated where evidence is not introduce know he pled guilty i think that's a fair enough but i think that's a different issue st of all this court that did happen in the morocco case and that happened in a single comment that the court made at the outset of the proceedings that a coconspirator and guilty and the court concluded that it need not decide whether the beyond reasonable doubt constitutional standard applied because it felt that the  campos he's actually telling the jury this is something for you to consider during your deliberations in our case it was on the rd day of a seven day trial it was a ten nd question that was never answered there were no inferences that could be drawn from the refusal to answer because there was no opportunity for the witness to answer and there was an immediate good instruction and in those types of situations courts in the th th th nd circuit have all repeatedly concluded that the confrontation  would be simply on precedent it's a hole that a single i'm answered question could implicate the confrontation oath and moreover there were st proposition is true which is that neither the defendant nor the court pointed to a single case and i submit because they can no single unanswered question could ever be six amendment violation are you going that far i don't think the court has to go that far in that europe i'm asking you what you whether you're taking that position in this case  i believe it's hard to conceive of a circumstance where a single unanswered question would rise to the level of a confrontation violation but i'm loath to say that it could never possibly how do you know that categorical argument ok i'm not what i am saying is that the confrontation clause is implicated only where evidence is introduced and what i am saying is that in the circumstance of a single answer a question that is addressed by jury of instructions no evidence is introduce that concludes the argument in this case attorney frank attorney kendall you should disconnect from the hearing at this time