a prosecutor force reasons so the prosecutor then reiterated its first reason that they were conversing well that reason was discredited completely the woman said you know why we just mad there was no discussion of any of that stuff and as for the second claimed reason that the prosecutor was concerned he said the prosecutor said for the first time at this point he mentioned walked in and got that comment or the defense counsel for that matter and counsel became concerned that he had created a bad impression w hallway or you know whatever as might well of her in some cases is there any requirement that if the result being the act and b as happened here the the direct question and answer which said no we didn't talk about it no i didn't do this no whatever the responses and there's no follow up question but the judge concludes based on what she's seen before  when you get to this other question this comment that some additional waiting for a half it was necessary needed to be named for the court the court expected fro discount the denial about the conversation and to accept characterization of he shouldn't be here coming up as sufficiently troublesome to justify the prosecutor's strike and how the case law that one looks to continuously talks about are deferring to the district judge who has the opportunity to her head in a way that she wasn't disposed for i think the chances are happening with are much more likely if the government prosecutor actually asked those questions rather than the court and i think that's why it was important in this particular case for the court to actually step potential juror giving you a hostile making some kind of hostile statement giving you a look again difficult to reproduce but create an impression and you know as defense counsel you would be held to the same standard so that if you if you in the future you were to challenge a juror nothing had been exchanged what he said was just if i may just because that would make sure you said the sequence was important and i agree with you it is very important i'm reading from you are one fifty to one fifty  three the first concern this is the prosecutor the first concern i had was the communication with the other juror this is glenn rivera the second concern that i had was the statement that was made to me which was he shouldn't be in here it is fairly characterized i think as hostile wouldn't you agree with me and certainly your critical statement it's not something you as a defense or a prosecutor w the generalizations that we talk about this applies to defense as well as the prosecutors let's suppose that our counsel for either side decides they really want to get rid of a juror because no such conversation took place so he comes in and then he thought they were talking but there was no statement about why does he hear anything like this all hypothetical  that statement never occurred nobody ever asked her whether she made a statement all she acknowledged was she was talking to the excuse you're and saw the prosecutor well i think what's important  to want to get rid of somebody because of race knowing passon then why wouldn't i engineer it so that i'm you know laying all the right foundations so i mean it seems to raising that before you make the challenge i just don't know how much the evidence of pretax offered in this record was the prosecutor didn't ask questions about a whole lot and did not ask questions about what happened after he left the witness room now first i know if the prosecutor did explain is an accepted basis for not asking for the questions setting aside the prosecutor actually offer an explanation here and it's an explanation that this report found credible but look at what the questions were trying to get at which is whether this perspective juror was actually one reason to grounds it was important to the cross cuter at the time that he had seen her talking to this excuse juror and so on that round at least the district did ask direct questions and the response was no we didn't talk about this case she didn't share anything so now the record is that a concern expressed by the prosecutor  did you talk about x and she says no we didn't talk about x so now the record affirmatively shows only that they didn't talk about nationality didn't buy that and  negation if you will of the prosecutor's concern on that point if that had been the only issue here with that still be enough because we would have to simply say well even though th jerk denied it the judge found otherwise so she must have made a credibility determination and so we have to defer to well let me start with i don't think that that's really what happened i'm not saying that's exactly what happened i'm trying to p little bit to see where we were just moved beyond deference and where we have to have some assurance that there was some objective reason here to sustain the prosecutors from well i think first to look at what happened i think  the prosecutor or not shouldn't be in the witness room it would have been enough that this excused hostile juror was talking to another juror that would have been enough to defeat a bason challenge even though the person actually would but the government was uncomfortable with that fact and exercise a crappy challenge in this court upheld i think the only instance in which this court has looked at it credibility determination and found were first released when there's  evidence in the record that contradicts what happened in the district court for all right and that's why i was pushing on this question were you saying the questions were asked really to address the for cause basis and that goes back to this issue about the questioning really for a for cost basis to begin with the prosecutor up front mentioned the fact that the statement was made that he mentioned that she said he's not supposed to be in here he did not have  prosecutor instead of what's the basis for a challenge and the prosecutor explained why based upon a statement he made the challenge which was it was possible and i was looking so sure whether i know first that that's actually the correct time that he would make those kind has been excused from the panel and then you have to be going by the witness room and you see a juror who's a potential juror who still on the panel conversing with the juror that you just got excused for cause would and there wasn't one thing in her background or her profile that raised any sort of concern whatsoever and that's the backdrop to this the circumstances when you look at where she said his version of events in other words i was in the witness room and i saw the two conversing and she said he's not supposed to be here and gave me a dirty look or gave me a look when she was questioned she didn't say that didn't happen that prosecutors a lie there was nothing like that and counsel suggest well it was really for cause the first reason was really just because the second reason was for cause because hostility would be certainly maybe a basis for a cause challenge however  if he was considered the prosecutor was concerned that concerned me and told the court that she was hostile and usually when he when they have a discussion why did he wait