you or i would like to reserve a few minutes for about a week i would like to focus my argument today on three overall points that it relates to the germans conduct issue that's sort of the primary issue that's focused on by the part hurry with that why that happened i think i think actually it's pretty clear from the record why i think all parties on it or didn't didn't understand what the controlling hallway nobody mentioned  to that issue i think that a key point here is the credibility and efficiency if you're a ten himself this court in anglo and brand talk about the credibility of the source juror ten there is a need for an every day and here hearing on a possibly prejudicial communication and any you have to have some evidence to produce human because you have to have possible prejudice i know that the government here  i'm trying to remember what else they mentioned to him in terms of i didn't tell him that the gentlemen had asked me what type of case this was and then that's when everyone said we shouldn't be talking about this you never say he didn't talk about the jurisdictional staff and also your honor never are going to know exactly what effect it had on ensuring we said no because we don't ever get to know exactly why the jury did what it did but that's why the courts and its court and supreme court what is the analysis on this side of the petitioner on this side of the right to a ve out proceed with the argument of the apparently good afternoon may please the court my name is alexander robbins on behalf of the united states with the court's permission i'd like to start off with this issue of of what's possible and the sort of the possibility speculation point that we raised in footnote five on page twenty six dollars of our brief i want to be clear about something we're not suggesting that possibility is the wrong standard i think that maybe the confusion here it is a question of what it is that's possible what are we talking about there's two different communications and i think that just a card correctly honed in on this distinction district court correctly honed in on this that the full extent of what the prosecutor on the bus told journo mccann was possibly prejudicial that's why he inquired had never densher hearing and inquired of specifically and that's why the court and all the parties agreed to remove that juror and struct sitting alternate journey and struck the rest of the jury to start their journey liberations in him that's why  you agree with them why why isn't it error for the district or to have fully confirmed exactly what was said if there was a doubt matched up because that's not the record your honor on page one to do as this court mentioned excerpts of record the district judge correctly asked the right question what did you relate to the other jurors we really should me talking about this and i would point out that that the verbiage shouldn't be talking about this almost exactly matches what the district judge heard in directly from the reporting juror on page one hundred and forty six of the record uses the same language when the judge is putting on the record what happened according to the reporting juror says that's when i think you can say that's when he has a framed phrase should be talking about this that's on page one hundred and forty six everyone agreed both and the statement from the us writing or with the district court's ultimate factual statement on the record later on on page one hundred and sixty two where the district judge says nothing inappropriate or i don't find that anything inappropriate was communicated from the bus writing or to the remaining jurors that's the state of the record and that's the state of the record according to the district judge whose findings are reviewed for clare based on the record before it so the state of this record is is different than i think what the defense would have it and the the two questions of the juror who was exposed to potentially prejudicial outside influence is  distinct question because of the good work of the district judge here in removing that juror as a separate question from what was communicated to the other jurors and the cases that the defense relies on almost invariably i think actually invariably all of them rely on situations sinton for example or somebody was on the jury the whole time and so yes the court said render stand in reasonably that if someone is exposed to potential outside influence and then deliberates on a jury we have no way of knowing what aspects of that outside influence during the deliberations that one juror passed on to his fellow jurors that's certainly not the case here just judge homed in on exactly the issue i would also point out on the forfeiture waiver clear air issue just briefly procedurally i think that our st certainly plane error applies here and as we argued a number if there  burden of showing prejudice on good by step two under the plain error standard the distinction that the defendant attempts to make in his reply brief about a lot no not touching on the issue is a separate question a lot of reserved whether there was ever a situation where you could have an inquiry like this on grammar and we're not going that far to say that per se you can't do that or simply pointing to a line as authority for the fact that the burden of of burden of proof here on prejudice and on a miscarriage of justice is squarely remains on the defense even if you don't find  thank you your honor yes and briefly a couple of points the government said that invariably the cases that mr hurtado relied on involved jurors who were just who were not dismissed and sat on the jury that's actually incorrect at least one anglo which is a very important  she told the other jurors that that that when she was dismissed and no no instruction was given well here i understand your honors or you know you know we talked about what exactly was communicated but there was no period of instruction transpired in the district court and that's the core of the question under good boy we need to nail that down the prejudice was the denial of a hearing into that issue and i think grammer reserved the possibility that there could be every man for such a hearing caught the court said whether they actual determination of the jury was affected isn't the issue is whether it makes you really impacted the course of the deliberation thank you your honor thank you counsel well i think i want to thank both counsel for the