right explain to me when you're obviously challenging how the court that the facts if what your argument be stronger if the court had not excused any of those are we do what we do because we're not there and that i mean aren't you asking you know obviously there was some exercise of discretion with the six people here there were some questions and the juror that you're questioning that ended up sitting on the jury continue to have a problem as it were by being silent and the expressions don't we have to give some deference to the trial court that is sifting through six people thread a four asked additional follow up question any problem with the fact that my client was drunk and i'm going to ask you to let my client go because of that and so people say well you know i might have a problem and then the court has back and says well if i see how you say that intoxication is something that you can consider as part of the intent and i'm telling you that's what the law is are you going to follow the law i mean players like to state it in one way and then the court comes back and says you know there's a differen judges talk to the jury then there is when the lawyers put that out and anyone that doesn't you know anyone that doesn't know that means for having been in a courtroom well a few things the judge didn't follow up with them individually and so that and the judge also i'm going to state this differently than defense counsel or not the state defense counsel misstated this the district court specifically said defense counsel has been careful to tell you this is something you can consider and it is something you consider a separate set or is there anyone would inquire further said exactly what i just said is there anyone other than those and so indicated who have a problem with that and then we have the government's rehabilitation which was very brief and was just a general can you can you follow the laws  minutes here i think is entire a lot of the time takes a three page the transfer transcript didn't use the ten minutes not specifically go back to those people and say you know if you really have a problem with this who are you following and why didn't specifically ask any questions about that the best of those pick people had been seated and there may have been a witness or two heard in the interim there but that was just to make it clear for the record in case there was any problem later i know that the print three sheets for example the jury sheets don't go into come up with an additional record mr burns i will reconsider it other than that in approximately four weeks we'll have the sentencing that's the beautiful thing about a transcript we don't have to speculate if as i've indicated if you can show me the context of the court will reconsider your motion did you bring you would be able to do that is that way understand we must say yes because they haven't understood what he's just really needs asking them the specific question i asked before they both they don't raise their hands but they do still objectifying the slot and you never followed up with rounds or any of the someone that the government doesn't know where they are unavailable he talks about someone that they know where they are but they can't get him you know to proceedings or whatever that point in time congress because we really want in the situation of someone who's on a bill bill bill bill what you're saying is they're  five either this or that is they can apply to both depending on the wording but the wording here the specific wording says absence and defines it as applying to both and i will delete as a crime just for trial and again there's a perfectly logical reason for that is the government knows where the please the court i'm roger haynes refusing the united states in this matter let's first talk about your around rounds and fog other jurors raise their hands when defense counsel asked them if they were quote uncomfortable of that and the question in this case is what the that referred to the question were came after prospective jurors barry had told the times counsel that he was uncomfortable with the claim that quote because martinez was on drugs he was going to be innocent in response offense counsel did not deny that this was his defense he simply warned the rest of the jurors that some people aren't going to like following that law and anyone who was uncomfortable with this should raise their hand that's when they raised their hands the judge saw people raising their hands saying essentially i won't follow that law either but that i was there and comfortable with that but but the predicate for that was a paragraph earlier in which perry had defined for the jurors what they said what he thought it least the law was and defense counsel didn't deny that was what they were going to be asked to do basically to say if you find my client is on drugs you must acquit so that's what the jurors were explaining that they were having trouble with and as far as the government's concerned frankly we think the judge made a mistake and excused for jurors who were perfectly good said what we're talking about is that that's one of the factors that can be considered and at that point you can sort of see the collective sigh of relief of the jurors and of course that's one of the factors the judge is reassuring us it's not some outlandish thing like the kinds fassel is trying to tell us that we're going to be uncomfortable acquitting somebody simply because they use drugs they're reassured the prosecutor then continues to reassure them saying that's one of the factors you can consider and at some point they're reassured enough to where they don't raise their hand again and that's really all this is about once you understand the context in which these questions were asked it seems perfectly clear none of these jurors were biased against the defense the defense never said for instance did any of you have a clearly did have a problem with as the one that's fairly repeatedly said twice you're telling us that if we find he's on drugs we must acquit and there's that we have a problem with that and that's all this case is about once we get past that i think it's an under the act and only later after it's too late does he bring that it to the argument to the district court's attention and say now i want to make this very unusual strange speedy trial act argument that i never made before the magistrate judge had the  had made the findings and frankly i'm not even sure i can articulate the argument but it's an argument that the for twenty years no lawyer has presented to any court that i'm aware of and in fact this court has repeatedly said that the period the thirty the word or and to a word for trial but the problem with his argument is that all of the exemptions under thirty one sixty one age are moved together many of them can apply to the thirty day period as well as to the seventy t record said what mr burns has been saying is that one of things you can consider in determining whether or not this martin is one that specific intent was whether or not he was under the influence of drugs it certainly is a factor you can consider mr burns has been very careful to point out there is a factor that you can you must of it is far as me not specifically raising the blackout i didn't know what instruction i was going to get the instruction i got was hard fought for to get that so i was fuming to the ninth circuit model and jury instruction as to voluntary intoxication  required that this argument hasn't been made before i guess i don't know if that belittles the argument argument seems pretty obvious to me but i guess you know i've just come up with something that was obvious that everyone is missing i should pat myself