to go out on a limb to hold either that there was no constitutional violation at all when an ex when extrinsic material is standing to the jury room because of its source that's  said to another were california law is radically different from federal law right we're talking about experience to give an answer came in if i remember correctly we have a test on that that says that the government has to prove and i can't remember exactly how high the standard is but the government has to prove it did no harm but i can well i'm not sure how to reconcile that with the twenty to fifty four and brecht analysis that usually this is what california calls ordinary error and correct me if i'm wrong on the facts to my understanding is that the jury is the one that called this attention to everyone that if the jury had said here we supposed to be looking at best you know might have ever known about it but i don't know what would happen after all right and we don't know but that's how it came to the attacks that is how it came to the attention and so you kind of have to consider that if you get to the point where curative instruction would work because they're the ones that say hey are we supposed to be working at this and then the court asks all of them can you disregard this and they say the california courts in not applying the chapman pass and not finding constitutional error that's clearly what i mean even in those states initial brief before counsel was appointed then you committed that this was constitutional california decision on this point is contrary to clearly established federal law it didn't follow any of the supreme court cases including part  harmless according to a lot of questions about whether it's harmless the fact that the jury did bring it to the court's attention and it was a curative instruction are factors which this court can consider under the catchall dangerous i mean this case on rebuttal witness actually i think helps defense some fireworks dealer who testified oh yeah i was talking about black powder somebody you know there was not that that's the defense the government makes much x the fact that the defense did not present the at person obviously that person would have a strong incentive not to make themselves available for testimony having apparently and provided ten kilograms of cocaine to these people understand why the prosecutor didn't just give the clerk xerox copies of the free speech instead of counting on the clerk to do with work form and make that xerox is to not give the jury the attached affidavit it's beyond belief to me that the affidavit when it to the jury room but because the defense seems like such a joke it's hard i don't really to know how to deal with the prejudice aspect well to that that his father was agreeing to be kidnapped by these people to get him out of trouble i just have one quick question let's assume prejudice and then go to the next level whether the instruction you know and apply the test that you want  here and i think the supreme court to make clear that you can see that there are there are times when an error makes your jury instruction what supreme court case can you point you to that says that you can't share an error with an instruction you  some errors with an instruction i mean that is clear and that is a factor that this court has recognized may be a factor in assessing prejudice the only question in this court the best answer i mean there's debates versus griebel which is a civil case from the eight hundred six which i think is also illustrated over the point in which the court said don't look at these pages of this book and the supreme court says no that's not propose that this is not very misconduct simply because of the source the question is rather whether there is clearly established supreme court authority that would indicate that but the path that the court of appeal took was unreasonable one of the papers here but the court would never have gotten anything for most lawyers that shouldn't go to the jury and so considering that there are some supreme court cases that are pretty strong extrinsic evidence it seems to me you have an uphill battle despite the twenty to fifty four standard well i think that when you whether whether we evaluated  the term a little funny but the california court of appeal correctly said they used the term more broadly than most other states in the fence do but the california court of appeal correctly said it's not your misconduct it's court misconduct right and to the extent that the da accidentally or inadvertently gave those if he did to the clerk then and he did he did screw up but there has never been a suggestion until the reply brief here that that was  should i believe that they didn't matter well so we've got we've got this jury question that came out of the jury room how should we use the affidavit that suggests to me that they're thinking and talking about the affidavit well then the judge tells them don't consider it got to you by mistake generally where the courts have held that an admonition eliminates the problem it's been in cases as  counsel said where evidence is admissible for a limited purpose is inadmissible for other purposes the judge admonished the jury to consider it only for the limited purpose so the appellate court say that's ok nonsense that the defendant bit me as opposed to what obviously is true and what the affidavit supports since i'm not allowed to consider the affidavit well that's one way surveilled they they did not attempt to dispute any of that was there anything to back up the black powder theory today have any kind of corroboration for the no the only argument was that this could be reconciled with black powder as well as cocaine now that in itself i don't believe was believable of any witness to anything including the did  guns and some people use replica guns that i have black powder and a wad and a ball and i'm wondering if it's the same black powder i don't know i do know that ramones testimony was that this was six they came back the court went back on the record and then at twelve seventeen the bailiff indicates that the jury's still in there so it looks like there's about a half an hour discussion of the affidavit issue and less of that time was actually with the jury in a room some of that they'd been sent back into the jury room so that took about half an hour out of the  the only question that this court has to answer is can they prove and they prove that it was harmless can make this crew prejudice they have to give this court a fair chance and if you can see damning it's outrageous this is not the strongest defense in the world clearly because they were not acquitted we don't see a lot of strong defenses because you don't get appeals and acquittals but they didn't argue alibi it wasn't a question of were they there it was a question of what did they now and they had one witness who the jury was entitle to believe and judge and i had tried a lot of cases where the testimony one witness in california sufficient to prove any point they could have believed ramon