with regard to the proffered violation fundamental fairness requires this court reversed the district court findings and grant the standard as it may is set forth originally in jenkins and then applied and lo and field we are to view the state courts conduct in it or the trial court context context in its context and under all the circumstances brassfield is another supreme court case which is instructive not necessarily binding but instructive since it with health pursuant to the supreme court supervisory power and wrap field is courts didn't have a trial judge asking how the jury would split conviction versus acquittal it was just if further deliberations would be fruitful in looking at how this circuit has  clavinova case that exact same issue was raised on appeal in another pamela has already indicated that that was not an error here i don't believe that the law of the case if you look at what this court relied upon a different panel i should say the court relied upon it relied upon facts as they were argued by the attorney general and as it had been previously set forth in the state appellate court's decision and the is and as argued by the attorney general were inaccurate and in one instance actually incorrect as set forth in the memphis belle and leave there appear see colloquy between the trial judge and the jurors same factual situation a panel has taken a look at that and said that the state courts determination was not  to object when the trial court came back in and did took these actions and coerce the jury and so i understand it's a tricky question ok let me ask you this about coercion because the court might very well reverse but where he views this is the state court and this is an odd situation because the jury although it had been supposedly deliberating for some number of hours if it was all is is they could say it was all chopped up that is the jury and this is what the district court said this is what the state court when the jury came back deadlocked the foreman stated that they had been deadlocked since day one it was as if this was that they had gone back and forth they were deadlocked from day one and now that means they really had to liberated much at all it was why i think it was it is telling of the sort of case that it was i mean that the prosecution's case rely primarily on a witness who at first it said he was so high on p c p he had never collection of any events and then all of a sudden had a recollection of events and two other witnesses who is testimony all kind of contradicted itself so i think that's telling in terms of why they've been split from day one so understanding that their deliberations haven't been smooth best because they have had two consecutive days in a break six and then they came back this was a jury to have deliberated for thirteen and a half hours and have had four  four witnesses testimony read back to them and when they came back the judge asked collectively one more time how and collectively they said no and then the judge told each individual juror but he said no and it wasn't until the judge that you know and this is after the court had asked that the numerical split was in the ninth circuit there is a case i believe it's i can't i don't know how to pronounce it correctly agile boy which is cited in my comments to instruction seven point seven that says if after asking how a jury is split for conviction versus acquittal and allen charge is given it is per se reversible error and i think that's compound it by the fact that the  you know it's taken in the context we now know what the numerical split as we now know how many are for for you know if and how many are for acquittal and there have been two polls and they actually asked the third time are you sure more time would it back and there was some tension going because they were sort of telling them i want you to get this thing  through detective loveless i believe and all of her statements the crux of it was you know confirming that they knew the name victim confirming that the name victim had borrowed the car and then  statement by all over which was argued by the prosecution in closing that he knew that he was very upset about the fact that the victim had stolen the car and stolen these stereo and that he was going to  inflict injury on him and sent him to the hospital all over to deny being involved in the in the homicide however the prosecution argued that very statement should the jury closing for premeditation for planning for motive and so it's certainly in for you know had a substantial injurious effect on the out had there been a motion to sever i don't believe there i can't remember whether we were aware that that  all over his case was out there somewhere i've listened to that recording of that argument and it doesn't there was no reference made to there being another co defendants who had who wasn't who they are able to to argue and have his opinion or instruct them that any decision was required just the opposite then asked them to continue deliberating and indicated that it would bring the jury back out in a little bit to see where we stand indicating that perhaps a different outcome the jury as to for and against goals however in this case the and the reason for that is prophylactic in nature because it could very easily be coercive particularly if the split is eleven one or something like that in this case was an eight four split and absent any other coercion or indication by the trial court that it would like movement in one direction of the other the polling of the jury in another self is not a federal was was a panel that analysts were made aware of the fact that the was a brother pending but as as fisher noted the only issue in all of our thumb on those case was the jury coersion allegation and in this case has the crawford error and  error alleged and six so that's why they were split up testified that he saw the brothers in the course of committing the crime and of course a mando of on l here was later arrested in possession of a firearm so what was the evidence of the other witnesses who testified as to the motive that the possible conflict of interest by having one attorney represent both of them in the  know your honor the the brothers attorney all of us attorneys was the one that appear represented that he would be representing he would be representing both of the defendants ok ok but there's a but there is  mean reading the know and responding to the jury for that hearing because that is how do the attorneys were called to the courtroom made aware that there was a note and that there would be a response to the jury and the attorney was there for that purpose inherent conflict in responding to the jury's know regarding being deadlock as to both brothers it would be hard for an attorney to spin that and one client's favor as opposed to the other the there's a lot a lot of reasons why obama did not have counsel present with him when the jury in fact deadlocked and the judge who were the jury returned a verdict likewise mr amano kahana did not have counsel back in may of two thousand and twelve when another panel of this court he was not properly advised of his right to conflict for counsel it's very clear it was a it was literally a two sentence exchange the other attorney stood forward and said it's fine if i'm here and the judge said is that the court though where lawyers would stand in for proceedings like that and they're appearing all over the county is there what is the conflict that's what the conflict is mr amano when i was entitle to have an attorney who is acting on his behalf the very fact that we are standing here arguing whether or not there was jury coersion from this instance where he didn't have counsel representing him shows that it was a pivotal point in this trial and his attorney wasn't  see that their interests were aligned and the fact that he's still entitled to conflict free council i don't think that that gets over the fact that he was not advised of his right to convert the council nor did he wave it has to be a knowing intelligent and voluntary waiver of conflict for counsel and there was no such thing and his counsel was not present to object at the very pivotal point of the trial that we are now here before this court seeking behavior it's really based on fundamental fairness and d was there there was five hundred words per the fact is argued today to the jury where that all over was the shooter that that has been that the government's argument again and then the shots were fired a mando takes off for an apartment as disheartening as they both kind of leave and that's where that version of events in a mando had done had to go