first the departure represented an incomplete exercise of discretion by the district court in looking to a potential rule thirty five the motion for cooperation that had already been given prior  but that is respectfully that is that is really not relevant to the determination that we're asking this court to in that once the government moves for the downward departure because of whether it had a prior obligation to consider it or not once it actually takes that affirmative step of filing and making a motion for downward departure which it did in this case it is the district court's obligation to consider that motion which it did and to make the determination that the prosecutor is the best of decision making at once that motions filed regarding the ultimate level or degree of the departure in other words once the government moves for departure it asked for one level here it's now within was for one portion of the cooperation during the sentencing hearing the prosecutor explained to the courts that it was specifically and in the sentencing papers that it was seeking a one level departure for specific cooperation involving information that evaluating whether the defendant has provided substantial assistance the court may consider the defendant's pre sentence assistance there's nothing that bars pre sentence assistance as an element in the thirty five credit for was cooperation that was not complete that the government's when it really determined you know how useful and material that information would have been until post sentencing presumably for purposes other defendants being a rest are prosecuted motion in that motion the outlined every single detail of the cooperation provided by the defendant and that we actually attach the proper session notes that six to the five k motion never seen that sentencing all the credit between what happened in the trial or in your brief i thought one of your arguments in the brief was well we should determine when the government realized the value as opposed to when information roughly three four five weeks before sentencing we arrive at the sentencing as we did here the government has possession of this information but the agents now have to go out develop the information to see if there's if it's viable information to see th continue was another three or four or five months now in this particular case of course you know the government nor the first household could offer any particular date when this information be developed when we came back in three or four or five months and at that point the defendant a national jury trial the bench theory i believe here is to require the government and the district court to wait until the all of cooperation is completely grand jury investigation title three seconds before the governments had the entire listen to the argument of the government as well as the argument of the truckers defense counsel but in particular in this case judge real also had the entire proper agreement which this court house  and i would also offer your honor i don't think that one your stash limitation would apply in this particular case because for instance is substantial assistance were provided by the defendant and he was asked to testify against one of the folks in the longest that would be an opportunity circuit as your honor pointed out which is that the benchmark is in fact the provision of the information not the payoff to the government and here there was complete cooperation as far as assistance provided information provided that led to the detention of an individual in los angeles other information out of chicago eighteen and twenty eighteen if you asked about that that is a correct statement that you don't really look at the time of subsequent payoff why wasn't sufficient have all the information in front of the district court which was provided here and the information was there in the district court could make honor questions the prosecutor regarding the standard and myself we're going to be subscribing to the district court here had the discretion to give additional levels but it is clear from the state of the record from the explanation provided by the prosecutor requires when a government witness confers with the member of the jury during the trial if there is a rebuttable presumption of prejudice that arises from that that key witness who has internet contact with the jury and then there is a conclusive presumption of prejudice under turner that was that that was the turner case where the bailiffs working with this is that and they spent a great deal of time with the jury so the court held that when there was this long standing intimate relationship with the jury there was something a prejudice that is one of mr kelly and those claims the second cla question then is if you can rebut the presumption and if the california court made the prejudice at least that the reliability of the result is so undermined that it is not entitled to any deference a rebuttable presumption would have put the burden of proof on the a g to show that this was not prejudicial and as pointed out by the magistrate judge there was a great potential for prejudice in this case because the magistrate mature in a number of factors this was a critical witness his credibility was crucial on the issue of whether or not the car was locked when mr  s disclaimers if you will i don't know testified it's long it's after closing arguments during deliberations what is he doing hanging around outside as you're speaking with these people so i think especially when it's busy especially when he is so busy but he going you know everybody all the work stacks up for everybody else when he's not in the air and that juror i think number four is going you know you're doing a good job and i wouldn't want to be in your position here is extends to ingratiate himself with this jury don't those questions really really stand out but i do believe that there is nothing to find a constitutional violation right now turner did not announce and he brought rule of person a reversible error on the subject of juror intrusion and that is why turner has not been understood to have applied such a rule as recently as the united states w lotto a supreme court decision of about a decade ago five zero seven us seven twenty five in which the course says that the committee inquiry in a case of intrusion is whether or not the intrusion affected the but i would i would assert that based upon this formulation that the court described as the holding of the case that is a variation that is an amalgamation of principles that come from a variety of places that is not driven specifically by a supreme court holding certainly not by turner and not by maddox flight you know again i don't like to bring cases to people's attention during argument having been on the other side of that not so long ago so over this is the language in that case which is the supreme court case that i think we would need to write a communications possibly for you to show between yours and third person or witnesses or the officer in charge are absolutely forbidden and invalid the verdict at least unless there is made to appear so an there's no indication that the supreme court has retreated from that language i am not as i stand here aware of a specific retreat from that but even if we we determine or if you know for the purpose beside the point since the state quick didn't refuse to engage in a in an evaluation of prejudice itself and it found that in fact this was harmless it made the following factual findings this is a brief conversation lasting between fifteen and twenty minutes nothing about the case is discussed the thing about counsel in case you haven't seen the case the petitioner in the case the court each person who recalls the case the incident adamantly that you know how the lack of prejudice is is resolved in this case and it's not a question i have for you to respond  application of supreme court precedent precedent which by the way not only the state of public court never engage in a in this calling of supreme court analysis that's been suggested here in this court nor did the constitutionally based jurisprudence and again the rocha case for example sounds as though it would have nothing to do with that aspect of the supreme court precedent finally the on this question of prejudice and i see my time is almost up but i would point out that that the basis for alleging prejudice in this case is really a completely speculative comparison by the petitioner of the second trial which resulted in the conviction with the identity of these proceedings but for the inappropriate conversation with these jurors thank you very much but i take it by the way that the second issue in this case  that should not have been the standard in this case the standard was that people rebut a presumption of prejudice so the question that the california court of appeal answered was different then the question that they should have been answering that's the