to litigation should not be allowed to sit on his hands with regard to their issue just because the opposing party has the burden on that issue perhaps wanting to litigate that issue in a different form such as the court of appeals now there are exceptions to that rule and one of those exceptions is when the district court doesn't rule on that issue we saw that and pop pop when the district court doesn't rule on the issue and the court of appeals can address it then the parties should be able to litigate it and the party that sat on his hands should be able to participate in that because a decision has to be made how can we cut to the chase yes sure what issue is it that you're talking are you talking about the reasonable suspicion issue or whether there was a seizure of the what issue are you referencing when you say that the other party the government seventeen government silence hands and didn't and the district court found that the seizure took place at two got would be one of it's the supreme court cases there their decision was made contrary to the government's position the government acquiesced in that finding didn't raise it told much later in litigation actually didn't raise its report that was a standing issue still called the the government of the government the court the district court found for the defendant on the standing issue the government never argued against that it was until the government found its office from court that argued against it and that the key word in that case is that the government the supreme court found that because the government on or something like that now that it's the findings weren't made until the end of the suppression hearing right i think that the government affirmatively presenting the argument that this is what the future occurred or a just didn't disagree with it never addressed that argument never addressed to the two at the time of the seizure and yes the government should have objected to it one way or another and what's the one way or another does from trying to find out what the government filed one way or another way ever the government could have made the argument by the vehicle for motion for reconsideration just as i might add the government's doing here today this one but i must be missing something but why isn't the plan era standard that applies if this were the if this was the defendant trying to do it would say that it was a plane your standards that apply your honor i think that is a very interesting issue and i don't think the cases are completely there's a a government wanted both ways like they want to see here but they also thought that they were correct in the certainty that there was reasonable suspicion for that seizure right and the government wasn't as we mentioned it's a post it was a post talk rationale situation there's no indication that it was an intentional believe we should never know when right they just didn't think about it they didn't say oh no it appears there's no indication but he said i'll look at that she she made an error about and in fact there was no argument there's nothing really more basic maybe even more basic than standing in some ways of your quantum of evidence whether meaning whether you have reasonable suspicion or probably cost and when it occurred and that's the the side you are a postal employee to hold the the items the packages at two o'clock it should be did he say hold up or to call that's a big difference whether or not he did she did not testify to that specific words so where is the testimony that you are relying upon to support your argument that she understood that she was to hold the package is worse than the record your honor i do not know that it wouldn't that be up to the district court to decide i how much weight to put on the cross examination evidence as opposed to the testimony from the clerk i would just submit that instructing someone to hold something has no consequence or effect unless the person actually holds it so i don't think you can say by obstructing her to hold it any seizure occurred absent a literal holding well it doesn't matter whether or if she was instructed to hold it she put the note in my understanding but i'm not the boss and she left the box on the floor but was there any testimony about it and someone came and she delivered it know someone cans of following day and she was told at that point to deliver it but if they had come before the police came there was a question defense counsel would you were going to deliver it were you and she didn't answer the question and they moved on but so i mean this is home to me turn into any way versus last for  and it is a court is there making credibility determinations we can't just say though that out and find some other basis in the record your honor i don't think you can point to any evidence that supports the conclusion that the package was ever sees or held or any of that so there's no evidence for that other than the question did you instructor to do that and as i said even if they didn't structure to do that that is of no consequence unless she actually does it in the right but what is the answer to my conceptual question if she does it in the sense and she says no i understand i wasn't to do that but they didn't show up is that a solution or not the question was tried to be asked of her i understand but i want an answer in a legal question that's the legal question was that a seizure if that was what happened a package now we have assumed that reflects our understanding of what she was to do with that would you say until it's actually effectuated history so the happenstance that the the it if in we need an answer to the conceptual question it seems to me before we can get an answer to the waiver for sure player because if it would have made a difference whether she and i understand the think it changed because there's no evidence that someone did come in for that so so your legal position is that it wouldn't matter whether she was in fact told to and did understand that she was to keep it because it didn't eventually there has to be a meaningful interference and that's the requirement in saying i would have done something is there any case that's similar to the sun and that hypothetical on that understanding that she would have kept it she was told to keep it she would have kept it but they didn't show up trying to do i would think that we would apply in plain air a standard because you didn't raise it previously and we would they're for as for the kinds presented if this court will allow the government or a stand in for the first time when it's never addressed which means really never fleshed out and litigated chipping is is a part of the jurisdictional rubric isn't it depend if it's fourth amendment you know that  ok but if you're going to allow the government to raise standing which is not litigation obviously not proven to then you should certainly allow to be done in this case what is necessary subset of his claim something else something feels different i'm not sure i c between raising an issue that wasn't raised and affirmatively attacking the findings of the district court which is what you're doing saying the district court made a factual error and that's what understand that you don't have to cross appeal i think but it because you're not contesting the judgment but you certainly are not simply it's minutes but you don't have to use it all  in the sense that it was delivered when the people came for it there may not have been evidence that while the package was was being held by massage or that anyone came in to take and asked for the package likewise there was no evidence that no same well i actually hold it in this case that the question is whether or not the clerk actually held the package and the best evidence of that is whether or not she would have given the package to the recipients had they come in and the question was asked by her but she never answered that question whether or not she would have given the package to the named recipients if they had come in right your time is up and your character of your time why don't you write down if you find the site to the statement the finding you indicated right down show opposing counsel and hand it to the clerk