reason that those council was not providing opportunities to suggest a response the government concedes and it's proof that this was clear error the the government takes issue with and it's under the case law that this is a critical juncture when a jury gives a note saying that it is bad luck saying that it's in our reach a verdict that in it's in and of itself is   will the judge nonetheless have the jury continue to deliberate but the other but there's more here and this is out of the case law also and you look at the time span between of communication have the attorneys go into the courtroom the judge did not go in the court room the core clerk went in the court room and there notified simply the judge is going to give them th opportunity there's about i would say two hours they stopped a liberation at six and then they came back to court started deliberations the next morning and it's only eight minutes after that th just go back a little bit in your discussion and i tend to agree with you that procedurally that the court did not follow any of our advice on how one ought to deal with a jury note i understand that so if we could just look at this six though of the allen charge and it's my understanding he said and tell me if i'm reading the right part that you're claiming is prejudicial you don't have to give up your individual beliefs as you hold them but you can examine the logic of both sides and try to work out a disposition that will accommodate everybody's beliefs after hearing all the afternoon about four o'clock or so the judge gives the following were does says sends a a note to the jurors hand apparently been written but on the jury's note saying we and only says to the jury couldn't it continue to to deliberate without without the balancing langridge of guarding individual rights of sending jurors that ever right there that that actually according to us courts case law may induce unanimity now we have something more serious here and what it is is that we have the nd clause of that charge forty five minutes later so this was not the judge's allen charge that happened the next that it was actually an off the cuff and problematic statement to the jury the going try to work out a cop a disposition or in other words a verdict that will accommodate everyone's individual beliefs well if you look at the meaning of the word economy com think is still real chronicler i'm let me say something else and that's it was very important and it matter what the judge said at that point and the reason is it did not say the damage that the judge had done the day before but of the clearly erroneous language used by the judge and here's the reason if there were still sensing judges dissenting  s around the next day that had not already been influenced by the judge's erroneous instructions that induce unanimity they still would have been there the next day so here is an instruction if you think about what the judge sat us the judge is saying look at the logic of both sides and if you are a dissenting juror in the decided you're still there jurors look at the logic of both sides and then compare the evidence and try to work something out with dodges expressing something that could should take hours or even days and yet they render a verdict in eight minutes what does that mean there was no dissenting juror at that on everyone of the possibility of the technical difficulties and it turns out i'm the one and here you can hear the word you want to stand down for a minute and see if you can reconnect was to the extent that we have an ineffective assistance claim do you agree that twenty to fifty five dollars is simply an option that's off the table given that your client is no longer in custody in any form so that to the talking about whether this is a trial strategy and normally it is why did an attorney not do something and here so it could be why did the attorneys decide not to introduce mental evidence that's not what the clear strategy in the record was you know the strategy was and counsel to introduce mental health evidence into the record or the deficient performance ineffective assistance on a cold record so to speak is that we never know what the answer might be if we were to talk to the defense counsel and and find out it i hard for me to imagine what this strategic or tactical reason might have been for the course that counsel took but i suppose i could imagine a world where the client for some idiosyncratic reason for example that there be no expert testimony and that she very much wanted to make that pitch coming from herself but only in that way it seems like she  had a number of very idiosyncratic use in other respects here and i i guess it seems hard for me to imagine how we could decide the ineffective assistance claim without making  decide the objective reasonable ness of the council's decisions without knowing that the framework within which he was constrained to make those decisions you know meaning and i do judge  e what you're saying my argument is that this is one of those more rare situation situations in which the record i think is sufficient to resolve this in that the record is clear here and it's in the record that counsel repeatedly during the trial attempted to introduce the mental health evidence record but in the wrong way and the here is willfulness and as such it is a specific intent crime that this court once decided certain opinions in that direction although it hasn't taken the last you'd have to go into speculation as to whether this event would happen and then on the one speculates as to whether one subsequently about another crime or a retains increase penalties i have a i have a question on the ineffective assistance so i don't have the answer but i mean we're raising raising it for and i thought that there's an extraordinary remedy of cornell guess that doesn't have all the constraints that hideous claim it seems to me in the government that it's really impossible not just difficult to determine why counsel did what counsel did here in deciding not to offer this mental health motion for a person who is not in custody a judge leslie raised the question of whether there are collateral consequences there may be collateral consequences here because of the pending immigration proceedings and i think that's insufficient to make twenty to fifty five an available remedy in the absence of custody i think corum nobis is the appropriate remedy for this defendant just briefly i don't want to get too far afield here but in order to obtain corm know this relief there has to be a circumstance a sufficient compiling circumstance  that granting the writ would achieve justice i think it's likely without binding my client anyway that having received ineffective assistance of counsel would meet that requirement there have to be sound reasons for failing to raise the issue earlier i think it's fair to say that dependency is an appeal where the issue is raised would indicate that that's why criminal this was not sought earlier and the petitioner must suffer consequences as a result of the conviction which i don't know the answer to that but i suspect that there may be consequences in the immigration proceedings in the event i would recommend to the court that it not reach the ineffective assistance of counsel claim on this record i don't think it's possible i do think that criminal this is the appropriate r well i can't say that it's preferable i can say that in my experience this court has only remained dead essentially where there are to one of two circumstances present to resolve an ineffective assistance or even some other claims one is where the record was a district court in some way or another addressed to some degree or another the claim that's being raised on appeal and that just didn't maybe should not be required to bring usually a twenty to fifty five proceeding and all of the time constraints of bringing a new petition having an address by the court having someone respond and the like so i can't say that it's more or less preferable but remained generally in my experience has not been utilized by the court in similar appears to be consistent with what he said at the track general charges about with all due respect to my very able adversary there's there's something nonsensical about the argument i think that he makes with respect to that note by the court and the comments the following day an allen charge is is coercive and that's why the court has indicated that coersion has to be balanced by other instructions to the jury i cannot perceive anything coercive with respect to what you have just read judge walker and  know it's a minor point i'm almost afraid to raise it but my adversary mr ryan kept saying that the court said to the jury continue to deliberate until you reach a verdict well he said please continue to deliver disagree with something honestly mr ryan said which was that the government conceded that there was no opportunity to respond to the district courts no that was sent to the jury on the st day of deliberation s when the court clerk came into the courtroom concededly an erroneous procedure there is no reason why defense counsel could not have said we have ject to that that language is inappropriate we have ject to the jury not being brought into the courtyard as it's supposed to meet done in every case and no objection was made and when the judge later took the bench on the same day he confirmed with counsel that they had been  no before went to the jury and again no objection was made to the district judge at that point all of these issues about the juror no and the judge in the court comments the following day have to be reviewed under plain error analysis and there was procedur it's a jury known the afternoon and apparently communicated by telephone and then the note goes into the what's going on here you as an officer of the court as represent context of this very case where judge mcevoy handled them appropriately and you know so so there's nothing to suggest that he routinely does this but i if i may her on another case that we've commented  on actually your honor i have to concede in mehta what the court did was agreed and nothing like what happened here where the judge went himself to the jury room to discuss matters  here there was notice to counsel the substance of what was going to be communicated to the jury was made known to counsel and and then it occurred and it was not in person by the  why i misunderstood judge leslie you made a reference to something being communicated by telephone i apologize if i missed that in the record but i don't think that's in the record anything suggesting that the judge communicated with the court clerk or counsel by telephone and so you know it's my it's my my understanding and experience that very often a jury will come back b and say they can't reach a verdict and the judge wants them to continue to deliberate it doesn't want to give them it it doesn't automatic trigger an allen charge the judge wants them to continue to deliberate before the allen charge is given an allen charge a sort of a last more agree with that wholeheartedly i did quote in my brief language that the district court said while in court with counsel that he wanted to avoid giving an impression or trying to  reaching a verdict and that's why i say it's a little bit nonsensical to say that this language was coercive where it's really the allen charge that a court gives when coersion it is becomes necessary or what i'd like to rue the court's attention the cases of the jia in krrish and they are both cases in which the only thing that was said to the jury was continued to look deliberate in fact in insane you too deliberate it's not enough time that's the only thing that was said this court said that what i write and then the government last item talked about playing are i think it would be helpful for me to talk to the court about that the government is saying this is purely a plane or a case i submit that it's not  there was a non contemporaneous objection made the next day and that was it was true what the judge said the counsel said to the judge you told the jury who said they couldn't reach a verdict reached a verdict gave no parameters for the jury to go by in other words protecting the not surrendering individual rights and ask for an immediate and charge if we look at maida and this court made a site  standards of harmless error in plainer i looked at the case i didn't see what this court relied on there but i think the essence of the case was under you that either standard the case reverse defense was denied the opportunity to suggest a response to the jury there were discussions right now maybe the jury you know didn't get it accurately gee i didn't see the transcript but that was it it was not an objection and so under either standard or both standards this court reverse last night is just a little mention of you know plain error the supreme court alina talked about