good morning if it please the court my name is greg barr calming i represent mr nally in this appeal we're here because we have an issue with juror twenty five who was one of the jurors in the case mr now each case this was a juror who went through the entire trial process deliberated rendered a guilty verdict and it was then warned that she may have conducted a criminal background history check on this to banally some time prior to having gone through this entire process it appears to be the same criminal charge and the same mr banally now the fence counsel did what he could at that time which well i don't know that he did what he could well did he ask for a full hearing to the to present any effort to discover whether she really had reviewed mr banalities work or i believe that the full extent of the information he had was based upon her testimony and the information that she provided us with everything he could if you don't think just slipped a cog here because if the jurors credible and not dishonest either employed or you're ordering the evidentiary hearing you can't see any information she handed well judge if this is extremely evidence or whether it's simple advice that's correct yes well the reason i would say it's extraneous evidence is that it pertains to this particular defendant and to this particular crime there's another test and that's the reasonable toss ability up to the district court sorry but you did not bring up in the district court i don't believe that issue was brought up by trial counsel right so even  it is an appropriate pigeonholes to put this problem into even yes how is it how did the district court somehow plainly or by not saying this is an ex process concern we believe it was incumbent or i'm arguing nourishing that it was incumbent upon the district court to have looked at the evidence differently and to then have applied a different test and that's the reasonable possibility test and then and the judge the this court first looked at it as under the mcdonald case or test to see if in fact there had been jury misconduct but then looked at it from the constitutional sixth amendment can start on which was whether or not it was if there was a strenuous information was there a reasonable possibility that affected the verdict the government in our case seems to completely ignore that test and even in there in let's say the tests have been applied on the basis of this record yes i just i just it came to me as i was driving home why do you think that if the district court had applied the test that you were that the outcome would have been any different i don't know it's just i don't know what the outcome would have been i just believe that it was incumbent upon the court at all but i believe the court had it within his power to have explored the matter further and to have applied that task you don't think the lawyers should have as told of this more questions you think the problem is the judge did not on his own think of more questions to judges to see that these questions and i understand one other point i'd like to make i know i'm running very short on time is this shifting of the burden of proof under the reasonable possibility test which i urging the court that applied in this case the burden should have been on the government to prove the absence of prejudice beyond a reasonable doubt that was not done and accordingly we would ask for a revers please the court i'm diane griffith in the united states i was counsel below the evidence in this case that was before the just record it's clear that the juror who testified at the hearing indicated that none of the evidence regarding her possible involvement in doing a background investigation of this defendant occurred before she left to try and take intel after she had left the trial was on her way home recalls the defendant's name as a possible way possible person that she had done a background investigation i'm joining them line this let me ask you would your view of this case be the same if  in this case the and there is no evidence that the defendant had actually engaged in prior conduct it may have been even done a background investigation on this defendant that this was the this was the arrest for which she may have the hearing to determine what had actually happened to find out from the jury specifically what the information was that she had impounded imparted to counsel which is why we ended up having the hearing so i thought why not a full evidence regarding why that why th i don't i don't recall specifically judge whether or not the i believe we put this she was put on hold the questions were asked and then the then the court went ahead and ask the questions i believe he may be correct banalities records right which is what you would expect to have for more than full hearing and i would think and judge i think that that at a full hearing that that may indeed have been the case however in this case since i think she indicated that even has no knowledge at during the trial and during deliberations and again this is altered by the fact as well that this was a split verdict the jury found him not guilty on one of the two counts not guilty on both counts and i think if they had there been everything involving rosenthal had information that was injected into the trial here we have a situation where it was not injected into the trial and again getting into implied bias how do you determine that whether or not there is actual implied by did she have any knowledge we have nothing in the record just point that she didn't know we don't know because she says i'm uncertain i tried looking through my records i couldn't find anything that's all you know after that