appeal there are two issues that tried like to address in addition to feeling any questions from the panel on not one issue that was dispositive of the twenty two fifty five motion mr gambl aware of any such authority from the ninth circuit your honor however i distinguish what i believe is the seminal case on mr point namely united states versus press the supreme court's decision from one nine hundred ninety one in that instance the magistrate judge presided over a board here in a felony criminy criminal trial after having twice asked for the consent of the defendants both to the defendant's counsel and to the defendants when they were both present in court to provide a drift fictional basis for the magistrate to hear opposing argument i don't believe it does your honor and here's why the nature of the consensus required is not simply one of sort of common law constitutional jurisprudence as a waiver of a constitutional right to be this falls under the separate category of consent but specifically mandated by the magistrate act and and the supreme court's interpretation of that and in this case when mr gambits trial counsel consented to the magistrate judges for presiding over the closing arguments that discussion occurred in chambers when mr gamble wasn't present while they were settling the jury instructions and when the district court inquired of him his trial counsel mr gamble object the trial counsel's answer was he won't care subsequent to that at the hearing on the twenty two fifty five motion mr gambas trial counsel testified to this between the time of settling instructions and when the journalist reassembled to miss your instructions on the law was an argument there was a discussion between the two of them you want to adopt a rule whereby in order for a magistrate judge preside over closing argument not only to the council of preside but the defendant who knows nothing but criminal law has no idea what a closing argument probably is proceedings namely closing argument versus a subsidiary matters and that is even under the test announced in the by the ninth circuit and gomez let's say the test requires a balancing of the rights and i th proceeding in this matter the district court's order was was was very well crafted but it ignored entirely this question of what rights are at stake in a closing argument and although the district honed in on the fact that magistrate judge person wasn't called upon to make a ruling and there could be no assignment of error to any rule ruling that he made therefore that this was a subsidiary matter but i i believe what the supreme court was saying that under the circumstances because he was present twice when it was explained to him he had a right to object and it's now so concluded twice in his presence and his consent could be implied and in this case i don't think you can even the court itself should have recognized it was the court that created the error alleged there and the proceeding assistance and then the question is you have to say that there was no prejudice but i don't see it gets you anywhere through the frame of this and in effect of this just isn't the issue as we've been talking whether or not under the closing argument phase you are arguing and that argues object and that question that argument is a violation  about critical stages i thought you were talking about critical stage of the shooting and that all of this magistrate judge is doing is exercising subsidiary powers that comes under the additional duties but i write i'm trying to understand are you ineffective counsel is being made here is because no objection was made to the magistrate judge at the trial level and therefore cannot be raised on appeal if that's your understanding so rudely interrupted electronically here i was asking you about the issue of waiver and i mentioned that my understanding is that the council did not object to the magistrate judge presiding over the closing arguments at the trial itself is that your understanding object and so it appears that the reason the claim of affected counsel was made in the first place was to have an appealable issue in effect is that your understanding yes i it the government's position under strickland that even if we were to find plane error because the indeed the defendant had not personally consented to the magistrates presiding over the closing argument that sending it back to an article three guides would not necessarily bring a different result and under strict then you've got a shell some real benefit and therefore there's no claim of ineffective counsel no matter what happens here thank you thank you thank you it's the plain error standard were applied in the manner that the government suggests then the press case would never have gotten to the supreme court because in that case the defendant's counsel did consent nevertheless it was reviewed outside under strickland who has the burden to show that a reversal would bring an entirely different result i believe that under the third i believe what needs to be shown is that the result would have been different in that an article three judge would have presided over the ultimate results of the defendant but rather the procedural difference you're talking about the the procedural difference is the harm though because either under a plain error analysis where we're asking does this error affect the integrity of the judicial system and i submit that failure to have an article three judge one one his mandate is just such a harm that deserves a reversal or vacation of the conviction and has with respect to the ineffective assistance of counsel i believe that how i frame the issue in the brief and less critical for the