we are requesting that her condition be reversed and the matter be remanded for a new trial there are three issues which we raised in the pellets brief however i'd like to address the jury polling issue and then perhaps the others  the williams case teaches that the primary focus d and application of that standard is whether or not sure coercion affected the fairness of the proceedings based upon the totality of the circumstance of the circumstances we believe that entitle ms banks to a new trial in this matter as it pertains to that issue i think it's important to recycle some of the facts in the williams case as well as the caraway case both of which are discussed in some detail and both of the parties briefs in williams the jury deliberated for three hours it was a one defendant case and for whatever reason the jury when the jury was polled the st juror answered no to whether or not it was that jurors verdict of guilt apparently the judge did not hear the answer because he was the judge went on to pull the rest of the jurors and it was only after the judge ready to retire because he had a civil trial pending i believe that side bar was called one of the parties and w judge was informed no juror number one did not consent to the verdict that he reported the jurors to which juror number one again said no this isn't my verdict he then gave them a short instruction telling them you have to have a unanimous verdict dismissed the jury and they returned ten minutes minutes later with a note indicating that juror number one had mis understood the question was asked when the polling took place now i think it's somewhat significant to note that a different juror wrote the note that said juror number one miss understood the question and yet another  his verdict his initial response was forced into and again under the totality of the circumstances were are to determine whether or not the jury verdict was coerced now the court in this instance did given instructions saying in essence use your good faith efforts to try and return a unanimous verdict court recessed at nine o seven and we were you look at this from the jurors perspective now in that respect we know that the manner of polling matters and although we cannot and it's forbidden to ask whether or not there is a reversible error but in effect that's what happened here because after juror thirty two voiced the fact that he would had been forced into a verdict and could not give  one i don't think so not at all because obviously if you have a note that says we have a unanimous verdict we don't know whether there may have been let's see who is number five so more we don't know how many more and that sequence may have been coerced also but once you ask the question now we know there's only one holdout he becomes singled out he is now the singled out juror and you have to remember not only was the jury polled as to ms banks but the jury was also polled as to mr cathy so in essence what we have is a twenty three to one vote with juror number thirty two being the lone holdout and singled out in the courtroom in front of all the other jurors in front of if i'm not mistaken that was before the cafeteria and that particular court closed i think i think the court kept series closed now but at that point i think they were still operating and providing providing juror meals because i know they had lunch there ok so that's that's my recollection but you have to remember it was late at night so it's nine o'clock the jurors had been there since early that day they thought they had reached a verdict and apparently they had when we look at the totality of the circumstance and the n korean is was the verdict at least from one coerced i don't know what else he could have said other than i was coerced to say this was a coerced verdict from this juror because he was forced he says i was forced into it and then we also have to look at in addition to that not only what he said but we have to look at the manner in which the questioning took place after he said it was for asked again is this your verdict as response wishy washy once again i suppose so hardly a declaration of affirmation then he's asked again is it your verdict that she is guilty on both counts one in two so he's pressed yet again after he's already said i've been forced into this verdict so he's pressed again he says i don't know how to answer that and then finally i'm asking you to answer at this time so he's pressed one further time for an answer at which point he says and somewhat exasperated i feel i need more time that's questioning in addition to the numerical division having been pointed out the course of colloquy and the coupled with the fact that ms banks is entitled that we believe in title's her to a new trial based upon those factors and i might add at the end of the questioning it didn't end there because at the end of the district court said basically i'll come back to you so here this juror is saying i was forced into this verdict and now after he's been pointed out and you know some of the cases talk about the fact that well the jury was called out by name i think that's a distinction without a difference when it talks when we talk about jury polling because we know what  juror number thirty two is there in court he's the only one talking everyone sees them so the fact that we no longer call jurors by name i don't think that's necessarily a consideration when we seek to determine whether or not a juror has been coerced in reading their decision now the court did say i believe in a footnote in the williams case and in the caraway case the court said look it's not error per se to continue pulling the jury we know that but i think williams tells us it's the better practice and that's and footnote three i believe it's the better practice or the better approach or the why i'm sorry they say it's the wise approach to stop holing at that point and just to hearken back to something that was said yes i believe it did take everyone by surprise because i can't tell you how many jury trials i've been through criminal jury trials and i believe this is the st one where i actually had a juror say no this is not my burden normally you have acquittal on some counts you have conviction on counts full conviction cool acquittal but i've never had a jury come back in just one and say this is not my verdict now the other point i wanted to make is as it pertains to what was said because in all of the other cases we see that the juror merely responds to the question is this your verdict and you know typically answer is no it's not my verdict well no can mean a lot of things though could mean i was coerced though could mean i just don't agree i don't think this government has proven their case beyond a reasonable doubt no could mean a lot but forced into can only mean one thing and that means i was coerced into voting this way and the other factor i think is important to point out the williams jury returned in ten minutes with a note saying the jury misunderstood the question there was some speculation in the decision whether or not that was in fact the case because we can't go behind the jury room door so we really don't know but in this case we know that the jury came back in less than a half an hour it was just minutes now if he was forced a half an hour ago how are we ever to believe that he wasn't forced less than thirty minutes later now we're using thirty minutes or twenty nine dollars or twenty eight minutes as the benchmark because that's what the record shows when the jury went out when the jury what we don't know is what transpired in that twenty minutes when they actually reached his decision when the note got to the judge how long it took the judge to take the bench it could have been much shorter than that but if it were indicative of the fact that ms banks did not receive a fair and impartial trial  the judge sent them back after the whole yeah i know me and fortunately wasn't trial counsel so i can't answer for sure but i think typically what the court does is it orders dinner for around a set time and in this case there was a pretty substantial amount of time between when the jurors go back and monday exhibits even go back i don't think there's anything in the record to explain when dinner actually came but your honors in terms of the jury setting the jury back to deliberate in other words you know if you take the jurors journey but there is a huge answer at face value i think forced into this by my fellow jurors she sending him back into the lion's den well  jurors deliberating and number one after the poll was completed but actually before that to complete the poll in the st place that that combination of factors created and tensional e a coercive environment or added to what the juror was reporting was already a coercive environment at least if we take the answer at face value well i guess i see the answer slightly differently your honor it's not i was buy all my other churches i'm not sure that there's anything quite so clear as to what the church he says none of this answers are clear frankly and i think that's why the judge following up the w with your honor's and his former trial judges your honors i understand that the trial judge is the one there on the seat who's able to kind of evaluate the atmosphere and that is why this court refused for typically for abuse of discretion but here we are in pla you and judge friedman was the one conducting the questioning of the jury and i think this court as it does in these instances should give deference to the judge's actions right away to try to determine what the juror was actually saying  i think it would have been an interesting issue had she just left forced into hanging in the air as to what she could have done as that point in terms of her options i think this court would agree that her follow up questions are neutral she's not pressuring the juror into asking questions and you know when you look at what the other courts of appeals have considered they do look at the fact as to when the defense attorney objects because the defen yes i would concede that and i think judge freeman herself or she had to do it over again would probably could see that as well but we are here in plain error so it isn't a question of what's the better practice it is as your honour's know it's a question of whether it was plain erroneous for her to continue polling and whether the steps that she took somehow coerced the juror into returning a coursed verdict and i think the focus on williams doesn't necessarily do the case law justice  this is a fear the unique circumstances mr woodward said but there are courts of appeals who have dealt with this question of what happens when that you're initially doesn't say that a verdict is thrown and in footnote t of williams this court cites opinions from all around the country we've cited them in our briefs as well there's the nd circuit the rd circuit th circuit the th circuit the th circuit in the d c circuit and on those in those cases literally all of those cases on abuse of discretion standard the court of appeals have affirmed the st act and they've made clear and i kind of want to quote the penny graph decision out of the th which is case show coercion and in a bunch of those cases your honors there are follow up questions to the jurors some that i would say are probably slightly more pointed than the questions in this case you know i would suggest this court go back and read the  what don't you understand you not understand the questions and questions along those lines and like i said the courts of affirmed on an abuse of discretion standard in those cases so what this court's really looking at and what williams looked at is there something more than just the fact that you continue polling after the church does not say that's your verdict is there something that leads to more course of atmosphere and i generally agree with m bits of this court that really where williams and this case furch pass is after the jurors says no this isn't my verdict or for a practical matter you know this isn't my verdict you  and i think both sides agree this is a forfeited issue and unlike the williams case for its kind of mic stand your view this is straight up plain error across the board but where this case differs from the williams cases after that initial response of this isn't my verdict because mr woodward's right what happens after that is to court in williams dismisses the jurors and i think you do need to put yourself in the jurors position so now the judge has told you to go away the case is over then the judge has no come on back and then he singles out that you're again it says you have to tell me again this is your verdict he then gives an instruction that says your verdict must be unanimous the district  and but it did say you should attempt to reach a unanimous verdict by deliberating in good faith it is the same practical instruction silvering and the silver instruction had already been given in this case  that isn't a fact that i've seen that the other courts take into account but i think this court has to look at it as a whole and look at whether the judge has then taken steps to somehow course that you're returning to verdict and i think really wanted to keep distinguishing cases factors between this case and williams is that note that the jury returns it williams where it's signed by two individuals who are not the holdout and then the judge comes back in and the church comes back and the judge says hey dissenting juror i understand you didn't understand my questions in the st instance that your is on the spot that you're probably has no clue what the judge is talking about because that you're it signed  the jurors being i think leaned on a little bit by the judge in that particular instance with that question and the juror as this court points out can either say no judge you the person has been for siding over this trial or ron i don't know what you're talking about or the amos case the berks case the gambino case where really is a question of the jurors says this isn't my verdict the judge asked some follow up questions the judge gives an instruction and your sister courts across the country have said that that is not necessarily by itself a course if atmosphere i think it is the defendant's burden to show that this case is a plain error case and trax williams i think say i'm not urging anyone to give up their positions here if you're good at that birds to a green and discuss your disagreements you know it was it was sort of going out of the court's way to guard against coercion or worse of atmosphere was the lack of unanimity was disclosed that didn't happen here but i guess i'm a little here asked the following questions of juror number thirty two after the jurors that forced into and then continued to hold the jury about these banks and then told the jury about mr cappy and then came back after deciding to keep them deliberating and didn't get renewed instruction at that point i will then i have to ask you to you know the court says it doesn't appear to be unanimous and i'm going to ask you to continue your best good faith efforts in doing so to attempt to come to unanimous verdict with regard to mr x i think it's more that yeah i think that's more than just go back and continue to liberate your honor i think that good faith reminder in there and attempt to reach unanimous verdict is telling that yours you have to maintain you know to hearken back to the silver instruction you don't have to return  verdict i want you to an attempt to return a unanimous verdict and i want you to continue deliberating in good faith you know it's one thing maybe if the silver instruction hadn't been given in this case at all but it was given before the jury begins to liberating so there where of the parameters of the law and you know it is worth pointing out that after the instructions given the court invites both parties to say you know is there anything else t wishes to add to the record with regard to the court's directive to the jury so at that point if the instruction again was course the people in the courtroom in the atmosphere at that moment could have said you know judge i'm not sure your instruction at this point is and you should maybe get a silver instruction and i do think the standard of review does matter here to some extent your honour's because the question is does this court looking at the record see that there's a clear and obvious error such that everyone in the room defense attorney prosecutor judge before sending the jury back should have said oh no no no hold on there's something seriously wrong here there's something problematic this is going to result in  and i just don't think the record reaches the level of that and you know frankly if it had i think there probably would have been a motion for mistrial at some point if there wasn't a motion for mistrial and that is a key distinguishing factor between this case and the other case your honor i don't believe any of the cases cited by the government involved a jerk who responded to a question in the nature of i was forced i was coerced i was threatened anything of that nature none of those cases and therefore they're all distinguishable on that basis alone i want to follow up on the life of the trial although it was a five day trial as i recall we mean are you asking us to take into consideration the weather and something actor in this case i think the weather when we consider the of the circumstances when you're considering jurors at nine o'clock at night in january who have been through five days of trial and are wanting to get home to their families i think that is a relevant concern for the court to consider now i'm not sure into was i i have no sense of that you have a sense of it the district judge had a sense of it the prosecutor had a sense i'm not asking for testimony here today but it strikes me if there was a dramatic statement to the effect force them to which caused eyebrows and other concerns to appear that we would have had a different reaction aside from the plane or standard i just don't stand well collectively there wasn't a reaction to force into you because it is the dialogue i don't know how to answer it so i don't know whether that speaks to confusion versus coercion so when we're left with that and we're under this plane it review what are we to make record that jim word forced into should be totally controlling against the backdrop of the participants who had a word to say opportunity to say something about how how how important forced into was and i'm not trying to minimize the language of forced into i appreciate your argument so so can you can you tell me why in your judgment there wasn't a more collective response from the critical participants counsel the judge or the prosecutor yes i think i can answer that your honor two things number one how i think everyone is judge sykes intimated was more or less an office because this is a situation that doesn't  the moderated procedure imposed the our mutual fate i think everyone was trying to determine probably in their own minds how do we deal with this situation what is the next step when a juror comments on forced into this verdict well what do we do and in hindsight yes we can go back and be monday morning quarterbacks and probably get it right but in this particular case no one got it right no one the district court didn't get it right defense counsel didn't get it right and so that's why we believe in