you know the premise of that it's all wrong because what she stated was a good for the gas station you know there's going to be selling gas over there and you have to put it in your car and that u think it would be forty gallon george i think it was out of ten hours and afterwards how about what was the so and did they ask for anything during those hostile and charged deliberations i don't believe so your honor i don't i'm i'm not really sure about that but i don't think so i think that everything that you requested was before the alan torch when the jury requested to see the video tape again was it probably they are told that if they don't reach a verdict there the case is going to be left open that if you're if you only person if you don't know anything about  then this case is going to be open and this was a seventy five case and there were two prosecutors and one on one or tourney one defense attorney so a lot of energy and money that was put into this what what both to show a plane clear are obvious error and in effect on his substantial meaning and this court has sat at the allen charge itself coerced the verdict and so if i could go to the states to control rights wrong first the defendant can't meet that burden and his case and i i'd like to just clarify very really briefly the record i missed richard gere's at pages thirteen eighty six and thirteen eighty seven of the appendix the jury the judge delivered his allen charge and the jury try really fast at nine twelve pm the judge then said at ten o seven oh i've got another note from the jury they want to watch the video again and judge commented so it's obvious this jury is continuing to deliberate they want to watch the video the jurors then were allowed to watch the video again and they continue to deliberate until after midnight or i believe twelve fifteen they tried said the morning and so in terms of the time that a lapsed w approximately three hours in terms of the jury is obviously not saying oh we got to return a verdict we got you know the judge told us oh let's just do it they obviously continued to deliberate as the judge  found even if the court found a plain clear obvious error in the wording of the allen charge there was no effect on the defendants i'm having trouble understanding that argument me suppose the judge said to them unless you return a verdict you'll all be executed and then they left in they asked to see the video again i don't think we would find that the mere fact that they asked to see the video meant that that allen charge didn't coerce them into getting a course the verdict and the charge your honor has proposed would be quite coerced if that and i'll go back to that crime that part in a minute but also this court in its decisions has looked very carefully at the amount of time that so lapsed and that's a strong factor in some cases there's a case cited in our brief names escaping me right this minute but the court found playing there and said well but look at the your and carefully game all three parts that required elements this court has that are necessary to prevent an allen charge from being coerced it and the most important thing that court said and it said this very clearly this was the last thing the jury heard on that is before it went back to deliberating again and said if you cannot agree if you sure are right together with the prior statement in the charge which is look at how much time and effort went into this look how much expense went into it and natural implication of the last sentences so if you don't give her that someone else is going to have to go through a same time and effort and which is a pressuring comment as well your honor the question before this court is whether to hire chart right in its entirety with all the required elements was worth and  like oh it's friday or some jury's going to have to reach a verdict or we really don't want to have to sit here again this is an easy case to try to here say nothing like that he emphasized the seriousness of the case how to all that time it's going to have to be done you could easily charge to be saying well now a new jersey going to have to be selected and that's all you know you have to read the charges your honor that's that's these two pa stamp of approval on analogies are for the court to get in the court can give that and then we get no issue this court apparently decided that it didn't quite like the pre approved allen charge that felt the need to  live with these two introductory paragraph which are designed telling the jury increasing the stakes of there not being a decision it seems like its expression they intend to put a little extra charge it says any future jury so it doesn't say that there would be one and then it's just saying don't think that there's some other group of people who would be better positioned than you to make this decision you are as good a position as they will be but that's not pressuring that's just you know differently situated than some other jury to decide it when you combine that with it's expensive to time to do this and another one will have to be selected the worry is now you're changing it from just a your advisor to them that you're no better business and that's people who might have to decide this too and if you don't decide that we're going to have to get another group of people we're going to have to go through this whole thing that's the problem to me well your honor the court did remind that your jurors were aware of the case might try that's right and they were certainly aware from sitting through it that it's been a long trial but the question before this court given the very careful or it included all of council we were to write an opinion that said we discourage this sort of bad living with the government object no we would be very happy with that there's no there was no reason for the court to include best and it just makes us all yes that would be something we were appreciative and of but but i guess and we don't think in this case that given the specific context of the entire charge and the evidence that the jury deliberated afterwards that and has shown reversible plain error i be happy to address the  prosecutorial misconduct planes as i would like to hear something about that i don't think referenced to i don't have a chain saw next to me at counsel table transaction the district court thought it was fine or at least not prejudicial i didn't think it was fine what was going on there well your honor the  defendant argued he his defense was to rest i mean he conceded he was on the video you know committing the crime and he argued that i was let me be sure i got the language exactly right three of the appendix so the prosecutor in rebuttal noted the specific elements that the court had instructed on and responded to each of them and on the immediacy his argument was look based on this evidence this is what he said the threat was i asked him did you see a chainsaw and you think no and then the prosecutor i mean this is not a case where there's somebody shifting the burden everyone agrees defendant has the burden to show addition to the prosecutor's clarification and we could argue about that there was a curative instruction that could not have been more clear more comprehensive more thorough i mean it was such a strong jury as an instruction nor as what the law is that is not the law that was an incorrect statement this court has repeatedly held that instructions of that nature or even instructions that aren't as strong as that are sufficient to negate any possibility of prejudice so the jury that was basically the last thing the jury heard before they went to deliberate they got to address instruction repeatedly they had it read to them they asked for a copy there was no possible confusion in the jury's mind about whether this was part of the trial but moss and to raf i would think the government would not prosecutor probably should not have said anything of the sort well your honor just to defend the prosecutor what he was attempting to do and he sat there and the court found that it was permissible jury argument later on is simply to make an argument based on the evidence so it may have been misstated i mean perhaps you should have said you should not buy that he was a threat was there because the evidence doesn't support bad because yet no i mean he could have been phrased differently but it was not certainly not deliberate and if misconduct it misstated was clearly corrected court i would also be happy to address the the comment on reasonable doubt and just to point out that the the argument the argument that's made in this court that somehow the shifting the burden of proof was not raised in the district court the prosecutor so it's reviewed for playing merit and objection was not raised the prosecutor did not mention anything about the burden of proof or that the defendant had to somehow makes the reasonable doubt standard even higher because you just explain how when i go to that this is just when one goes to the gas station one typically is absolute there's no doubt that it's that it's gas that you're getting and if anything that placed a higher burden i'm going on the government by the b it was basically an illustration of how circumstantial proof can be to a