him permissible for the government to comment on silence in a noncustodial setting after all your client was referring to that conversation as evidence of his cooperated attitude so why in referring to a non custodial exchange can't the government say well look notice he was silent during not saying not notice the silent now at trial i that the right protects you against the prosecution commenting on your silence in the but not testifying ok as opposed to the broad us way of thinking about that if they come under silence ever in any context how did the comment here on the silence in the c here about to be put in jail and he's still silent that we've said repeatedly you cannot make that kind of comment and what i'm asking is why is that the same in terms of the prejudice it does to the defendant the comment on look he's raised here before you he could testify and he's not we said clearly prejudice or you know why is that the same as saying back to when he had that first meeting and he's saying he was so cooperative look he didn't deny it those you could see how those would be different the course of a four day trial it was three questions and answers only two of which questions could conceivably trench upon an article right to name remain silent is just it's not possible to suppose that at the end of the day for the jury would somehow think that those two questions that were asked several days ago was a suggestion by the prosecution of the definition of come up on the witness stand here at trial and and testified comment in closing what we call closing comment one was not objected to it's absolutely clear that was not objected to so that's that's playing error you so i think all that you're really left with and in the government's view is how do  interpret closing comments two and three and now we're talking about what happened on rebuttal and i think the district court got it exactly right this this  was a fair response by the government to defendants theory of the case essentially which was the capital of all the interview when you jurors hear it and i want you to hear it in its entirety this interview defendant defense counsel closing was continuing on that thing you have they have not shown one iota not one shred not one little word that says mr zuroff because andy knew that those tests were coming from canada what's the human reaction you've got three government asian sitting there suddenly accusing you of being a tough smug what are you going to do he exhort of the jurors to consider the defendant's imagine that this tape conversation occurs on the stand trial in the exact same language could the prosecution at trial say look you just heard him on the stand when we got to the key moment he stayed silent oh i think that that would have been a fair approach roger and it goes back to some of the earlier does your argument depend on us saying that would be ok too no no it doesn't have been that's what i was trying to figure out why is it significant that it was a non custodial setting that the prior interview why is that less prejudicial to comment on that silence then it would be to comment on the silence if it was given on the stand because the under supreme court case on this actually isn't isn't preached but it's the oil issue that i believe the district judge referred to in his order denying a motion for a new trial and it's not not raised on appeal but the supreme court has made it quite clear that in the noncustodial silent here and i guess what if i understand defense counsel's argument the thing that one would be concerned about is this use the jury observes this person sitting there silently in the trial and then the prosecutor is saying look when we asked him about these issues back then he was silent which way the jury looks over and he still silent so the worry would be the jury starts thinking oh this guy's silence is the sign the silence that the prosecutor just commented on which is silence to cover up when the general rule is we're not supposed to be commenting on the sense of sort of inferential argument well i think it's too big of a difference it is a very it's a very attenuated so why did you say why why is that not a well to remember what the standard is and it's whether the comments were manifestly intended or such character that the jury would naturally and necessarily take it to be a comment on the failure of the accused to testify that's the court's standard and why wouldn't they that's why why would the fact that he's commenting on the fact he was silent at the cafe of all the interview not naturally leads you to think he's still silent here must be the same reason because the context the context of this is the defense's theory of the case which is that if you listen carefully to the tape jurors you'll you'll conclude that the interview exonerates my client the once that was before the fourth as the theory of the defense it no but that's a reason just to say that he's going to open the door to this would be equally true at trial i'm asking you is there any reason why a comment about silence in that setting should not be thought by the jury to be implicitly a comment about his silence in this setting which is the trial said yes your honor well for one thing the district court repeatedly including right after the close of rebuttal remind that the jury gave an instruction that you cannot take make any inference from the defendant's decision not to come up on the stand and testify and the entire context of this was examination and i think a jury especially when instructed by the court just before it goes into the deliberations the jury knows the difference between silence in this and if you take that we've heard and that has been the subject of evidence versus the judge is telling us don't infer anything from the separate silence of the defendant here in the courtroom one is fair game and the other we're took to put out of our minds and as this court has said in any number of cases we the courts presume that the jury follows the the district court's instructions you have a harmless error argument anyway yes your honor that's that's developed in the in our brief and i think that even if you were to find that all four trial but here you can you can at the threshold say that in this context the complaint of prosecutorial remarks were not improper to begin with